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MEMORANDA 

OF 

fflDR CLAIMS AGAINST MEXICO 



WHICH WERE 



SUBMITTED TO THE LATE BOARD, 

AND 

REJECTED. 



Pcf£.''e. 
BRIG REBECCA— Statement of the case 3 

Decision of the Board 7 

Argument on rehearing 9 

Final decision ^^ 

SCHOONER SCOTT— Statement of the case ----- 13 

Decision of the Board 21 

Argument on rehearing 57, 58 

Final decision .... 86 

SCHOONER SUSAN— Statement of the case 29 

Decision of the Board - 36 

Argument on rehearing - 40, 58 

Final decision ^^ 

SCHOONER CONSTITUTION— Statement of the case - - 68 

Decision of the Board 83 

Argument for rehearing - 79 

Final decision - 86 

As certified by the Department of State - - 87 



WASHINGTON, D. C. 

BUELL & BLANCHARD, PRINTERS. 

1853. 



■4 ^ 



I 



CLAIMS AGAINST MEXICO. 



■ Complaint having been made to Congress, by nearly all persons 
•whose claims were either awarded or rejected by the late Board of 
Commissioners on Claims against Mexico, of injustice done them 
by said Board, it has been deemed advisable to exhibit, from the offi- 
cial records of the Board, the grounds of rejection adopted in a few 
cases, in which a rehearing was had on argument calculated to correct 
errors of fact, errors of principles, and errors of law, set forth in their 
decisions ; which, nevertheless, the Board refused to correct, and made 
absolute, as the annexed official documents will establish. They are 
printed for convenient reading by the Members of Congress, and more 
particularly by the Select Committee of the Senate charged with 
inquiry into the proceedings of said Board ; and given in this naked 
form without comment, that the reader may from them alone make his 
own unbiassed conclusion on their merits. 

The persons interested in these Claims have petitioned Congress 
that a new Board be authorized to review and reaudit the cases herein 
mentioned, and so, also, all other cases acted on by the Board, in order 
that the injustice done them by said Board may be corrected. 



^^yy^ 



fi? 



SCHOONEE eeeecca: 

NATHAN EELLS, Master; JAMES W. ZACHARIE, Claimant. 



STATEMENT OF THE CASE. 

The schooner Rebecca, with a lawful cargo of goods, sailed on the 
4th of April, 1822, from New Orleans, on a trading voyage to Mexico. 
The property was owned by the claimant, James W. Zacharie ; though 
at the time he had a partner in business with him, named Samuel H. 
Turner. The concern became embarrassed in consequence of this and 
other heavy losses, and thereupon closed up the concern, Mr. Zacharie 
agreeing to pay all the debts from private means ; and in consideration 
thereof, all the assets and claims were assigned to him ; and, having 
paid the debts, became the sole owner of all the effects, and he is the 
only person who now has, or since the time of said agreement has had, 
any interest in this claim. 

The schooner touched, by permission of the authorities there, at 
old Tampico, then called Pueblo Viejo, and landed a part or all of the 
cargo. Some articles to a small amouftt were sold ; the articles not 
sold were reshipped, and the vessel regularly cleared for a further voy- 
age. All the necessary papers for the purpose were obtained from the 
Mexican custom-house for that purpose, and she left the port, but was 
detained at the bar. While there, the judge, military commander, and 
collector, conceived the plan of appropriating the property to them- 
selves ; and, under the pretence that they had information which ex- 
cited a suspicion that it was intended to smuggle the cargo into Mex- 
ico, they seized her and her cargo, and by an armed force took them 
back to Tampico. 

In consequence of this illegal and outrageous proceeding, the claim- 
ant lost not only the cargo, but the vessel, and now presents his claim 
for compensation. 

The facts in this case are not numerous or complicated ; and it is not 
apprehended that the Board will hesitate in coming to the conclusion 
that the claim is just and well sustained by the evidence. 

The vessel and cargo, for which compensation is now sought, were 
owned by Messrs. Zacharie & Turner, merchants of New Orleans, and 
were sent out to Mexic^in 1822, and seized by the Mexican authorities 
at or near Tampico. 

Vigorous efforts were made at the time to get possession of the prop- 
erty, and, after its sale, of the avails, but they were unsuccessful. 
An agent was sent to the city of Mexico, at considerable expense, to 
prevail on the central Government to interpose, as it was supposed they 
would in a case of such manifest wrong ; but when he arrived there he 
was advised that the necessities of the Government were so great and 
pressing, that it would direct the money to be paid into the treasury of 



the General Government — and if once there, all attempts to recover it 
would be unavailing ; and that it would be better to seek redress of the 
local authorities at Tampico, though they had committed the wrong. 
This advice resulted no doubt from the fact, which the history of that 
date has recorded, that a civil war then raged in Mexico, in which the 
Emperor Iturbide was opposed by several leading Generals with large 
bodies of troops ; that battles had been fought ; and, in the end, the 
Emperor was overthrown and exiled, and a total change of government, 
both in form and in functionaries, resulted. 

It appears by the deposition of Jose Perez, a witness of well- 
sustained character for veracity, that the collector and judge offered, 
through him, to decree an acquittal of both vessel and cargo for one- 
half the avails of the sale ; but, conscious that there was no pretence 
for the seizure, and that, without outraging all law and justice, there 
could be no sentence of condemnation, this offer was rejected, and judi- 
cial proceedings in the case urged forward. 

The vessel and cargo were sold ; not, however, in pursuance of any 
sentence or decree of condemnation, but by consent of the parties, to 
save the schooner from destruction by the worms, and the cargo from 
pillage while in the custody of the Mexican officials ; and the avails 
went into the hands of the judge. He, however, delayed proceedings 
until he became involved in a charge of high treason, was arrested, 
made his escape, and ran away ; taking not only the money avails of the 
sale with him, but, as is supposed, all the official documents relating to 
the case. This event, and the revolutionary condition of the country, 
discouraged the claimant. After spending a considerable sum of money, 
and seeing no prospect of recovering the property, the claimant appears 
to have intermitted his efforts for some time to procure the redress of 
his wrongs. 

The principle is too well established to render it necessary to refer 
to authorities, that the owner of property seized as prize in war, or for 
violating revenue laws, is not divested of his right to it by the capture 
or seizure, nor until there has been a decree of condemnation. Even in 
a case where there was just cause, the seizors cannot escape from lia- 
bility to him for the property, without showing a regular decree of con- 
demnation. It is not sufficient for them to show that there is cause for 
confiscation ; they must show a decree of a court of competent juris- 
diction, declaring its forfeiture. 

This position — that capture or seizure does not divest the owner of 
his right to the property — has been established, and the authorities in 
support of it referred to in another case now pending before the Board, 
(the case of the Escambia.) It is not deemed necessary here to repeat 
the argument, or to refer again to the cases which support it ; they will 
be found in the printed case, (the Escambia,) at pages 25 and 2G. The 
undersigned will repeat the reference to only two or three cases : 

" The property of a neutral is not divested by capture and sale by 
^ a belligerent, unless condemned as prize by a competent court." — 1 
Johnson^ JY. Y. Reports, 471, Wheelwright vs. Depeyster j same 
point decided in 2 Peters ^dd. Decisions j 345, 



" The property of the original owner is not chjlnged by capture, 

* without condemnation." — 1 Cranch, 32. 

The case under consideration is as strong as any that can be con- 
ceived for the owner of the property. Though there tvas a seizure, no 
cause for it is shown, and no decree of condemnation ever pronounced. 

It is true that there was a pretext set up for the seizure, and its 
character is well worthy of the particular attention of the Board. 

In the protest made by the captain, mate, and sailors, at the time of 
the transaction, it appears that the pretence alleged for preventing 
them from sailing, after permission and the necessary papers were 
granted, was, that information had been received " that his [the cap- 
tain's] object in going to sea was to smuggle." There was no alle- 
gation that any law had been violated, any offence committed, but 
merely that a violation of law was intendeds Under this pretence, the 
collector and military commander took forcible possession of the vessel 
and its valuable cargo, with all the papers on board. Though assured 
by the consignee, (D'Arbel,) a highly respectable merchant, and by the 
supercargo and the captain, that the accusation was entirely false, they 
persisted in holding on to the property, and rejected D'ArbePs offer to 
bond for the vessel and cargo. The names of the accusers were de- 
manded, but these officers refused to give any information to justify 
their conduct. 

The property was sold in presence of the judge (Ortiz) on the 14th 
of May, 1822, and by his order ; (see Doc. No. 8.) The cause of sei- 
zure is stated in the heading of that paper. It was sold, not because 
it had been condemned, but "./or account of those to whom it might 
' belong, the cargo of the schooner Rebecca, Captain Eells, which was 

* seized on suspicion of an intention of smuggling.^'' 

It was not, then, pretended that there was any proof of an intention 
of smuggling ; but there was only a suspicion of an intention to com- 
mit an offence against the revenue laws of Mexico — not a suspicion, (it 
will be observed,) that an offence had been committed, but a suspicion 
of an intention to commit such offence. 

Jose Perez, a witness who is presented under circumstances which 
entitle him to the utmost credibility, knew the grounds of the seizure* 
He says in his deposition (Doc. No. 17) that "^Ae was seized by the 

* captain of the port, on the alleged [vague and unfounded] suspicion 

* of intention to fraudulently land the cargo, and sent back to port in 

* charge of an armed force; that said D'Arbel remonstrated against 
^ said violent proceedings, and gave the most positive assurance of the 
' innocence of intention of the officers and all persons, including him- 

* self, who were in any manner connected with the vessel and cargo, 

* but without effect." 

D'Arbel, it will be recollected, was the consignee and commercial 
correspondent of the owner of the vessel and cargo, and a respectable 
merchanti To quiet their pretended apprehensions, he offered to give 
bonds that the apprehended offence of smuggling should not be com- 
mitted. But all this effected nothing towards releasing the property. 

" It was then manifest," (as Perez states,) " from the beginning, that 
' the whole suspicion of fraudulent intention before mentioned was but 



' a pretext for the plunder then resolved on and afterwards consum- 
' mated." 

Considering the grounds on which the seizure was placed^ it cannot 
be a matter of surprise that the collector and judge should oiFer to 
compromise by taking one-half the sum for which the property had 
been sold) or that the supercargo should decline to accept iti Nor is 
it less surprising that no trace of any judicial proceedings in the case 
can be found. The documents which are presented to the Board show 
that great diligence has been made by the claimant, and considerable 
expense incurred, to find any trace of judicial proceedings in the case, 
but all in vain. If any such proceedings were instituted) the judge, 
when he absconded, did not see fit to leave them behind him. 

There is nothing in the case, as the undersigned conceives, to justify 
the assumption that the seizors ever dared to go on to judgment. No 
record can be found of any such judgment, or of any initiatory pro- 
ceedings in any court, not even before the absconding judge. That 
there was no judicial sentence in the case is not only proved by no 
record being found where it would be if one existed, but by the testi- 
mony of Jose Perez, now a respectable citizen of New Orleans^, and 
certified " ^o he worthy of full belief.''^ He was, at the time of the 
seizure of the Rebecca and her cargo, the clerk of Don Domingo D'Ar- 
bel, the commercial correspondent of the owner. He states that, after 
the supercargo, acting under the advice of D'Arbel, refused to buy an 
acquittal by giving up one-half of the cargo, and urged on the trial, in 
full confidence of success in the result, the judge procrastinated the 
proceedings, but at length fixed on a day of trial in December : but 
before that day arrived he was arrested on a charge of treason ; and, 
while on his way to the city of Mexico, escaped from custody, fled to 
the shores of the Pacific, and there died. 

The undersigned has not been able to conceive any substantial ground 
of opposition to this claim. 

That the vessel and cargo were not confiscated most conclusively ap- 
pears ; and it is equally clear that no law subjecting them to confisca- 
tion was violated. 

That the forcible seizure of the Mexican authorities at Tampico 
was done in bad faith, and without any fair pretext, is placed beyond a 
reasonable doubt. 

There was nothing in the voyage itself, or the conduct of it, to excite 
the suspicion which the Mexican officers affected to entertain. At the 
time it was undertaken, our trade with Mexico was considerable, but it 
afterwards declined in consequence of the plunder to which it was sub- 
jected. It was the usual course for vessels with large cargoes to visit 
the several ports in the Gulf of Mexico. It appears, by a certificate 
from the custom-house at New Orleans, that the clearance of the 
Rebecca was for Vera Cruz, but the original bill of lading, which is 
annexed to the deposition of James W. Zacharie, the claimant in this 
case, (see document No. 5 B,) that her destination was Tampico and 
Vera Cruz. Her visit to Tampico affords no ground whatever for 
suspicion. The bill of lading shows that she intended to do so, for the 
purpose of trying that market. It also appears that she had permis- 



gion to land and sell a part of the cargo at that place. Her proposed 
departure from that place afforded no cause for suspicion. She had 
received from the custom-house the usual and regular papers for that 
purpose. The supercargo had a clear right to seek a better market if 
he thought he could find one ; and no objection to his course was made 
or intimated until he had left the port of Tampico. Being delayed at 
the bar in getting to sea, the idea of plundering the property seems 
first to have sprung up in the minds of the judge and military com* 
mandant of that place. The groundlessness of their pretence has been 
commented on and exposed ; and nothing now remains to be considered 
but the amount of damages -which resulted from the lawless and out- 
rageous conduct of the Mexican officials. 
All which is respectfully submitted. 

JAMES H. CAUSTEN. 

Endorsed " Statement of the Case Schooner Rebecca, filed January 
20, 1851. James H. Causten." 



Board of Commissioners on Claims against Mexico, 

March 21, 1851. 

THE CLAIM OF JAMES W. ZACHARlE. 

This claim is for the value of the schooner Rebecca and cargo, al- 
leged to have been lost at Puebla Viejo by the illegal proceedings of 
the judge of that place. 

The statement of the case as set forth in the memorial is not estab- 
lished by the papers and evidence introduced to sustain it. From these 
latter it appears that said schooner, with a cargo valued at New Orleans 
at $7,676) being the joint property of Zacharie & Turner, set sail 
about the 4th April, 1822, bound for Tampico and Vera Cruz. That 
in due time she arrived at Puebla Viejo, and entered her cargo. Sell- 
ing, by permission, a small portion to defray expenses, she cleared with 
the residue to return to New Orleans. Before the vessel crossed the 
bar of Tampico, she was seized by the custom-house officers of that 
port, charged with fraud, and proceedings were commenced against ves- 
sel and cargo before the judge at Puebla Viejo. 

The supercargo, consignee, and captain, thinking it would be best 
for the interest of the owners, agreed that the vessel and cargo should 
be sold, and the proceeds deposited in court, subject to a final sentence 
or decree. The decision of the case for some reason or other was put 
off and protracted until, in the end, the judge having been accused of 
treason, made his escape, taking with him, as is alleged, all the money 
deposited and all the records of the case. 

Can the party claim against the Government of Mexico under these 
circumstances 1 

Without going fully into the question how far by the public law (by 
which this case must be governed) a nation is liable for the misconduct 
of its judicial officers, the Board proceeds to consider this claim as pre- 
sented by the testimony and papers offered as testimony. 



It not only does not appear that the Mexican Government had the 
slightest agency in causing or suffering the wrong complained of to be 
done to the claimant, but, on the contrary, it appears that all knowledge 
of the wrong was sedulously kept by the agents of the parties interested 
from the knowledge of that Government. 

By the letter of one H. Didier, written in December, 1822, it is 
shown that he was some short time previous at the city of Mexico, 
and presented the case to Mr. Wilcox, the United States consul re- 
siding there ; and the latter had a private conversation about the matter 
with one of the Secretaries. The result of this was, that it would be 
better not to bring the matter to the notice of the Mexican Govern- 
ment, or the proceeds of the sale of the vessel and cargo would be 
ordered to be paid into the national treasury. On the contrary, the 
parties were advised to make the best arrangement they could with the 
judge before whom the case was brought. 

The end of this conference with the consul was communicated to the 
consignee and supercargo by Mr. Didier, and the former proceeded to 
act under the advice given; and Messrs. Zacharie & Turner, the writer 
says, would be informed by the consignee of the result of the intended 
arrangement with the judge. The same letter also shows that an ac- 
count of the transaction was given to the owners by the supercargo ; 
and this account was forwarded to them with the letter of Didier. 
None of this correspondence of the supercargo or of the consignee has 
been furnished to the Board. 

The next step taken by the claimant in this matter appears to have 
been a search for the record of the trial at Puebla Viejo, about the 
commencement of the year 1844. This search seems to have resulted 
in nothing save the finding an entry on the custom-house register at 
that place, showing the arrival of the vessel, the entry of her cargo, 
and a sale of part by permission, and her exportation of the remainder, 
said to be intended for New Orleans. This record states that, after 
the vessel had thus cleared, " subsequently fraud was discovered, and 
the vessel and cargo were confiscated." This effort to find the record 
was followed in 1845 by a representation of the case to the United 
States State Department. Thus it appears that a claim arising upon 
an alleged gross and illegal act was kept entirely out of the view of the 
Mexican Government by the claimant, and no notice of it brought to 
the knowledge of his own Government for upwards of twenty-two years. 
Upon what grounds can Mexico be held responsible for this fraud or 
misconduct on the part of one of her judges ? It seems to us that if 
liability for all acts of its judicial officers should attach to the nation, 
it can only be on the ground that the Government receives the benefit 
of or sanctions such acts. In the case before us, neither of these 
probabilities arise. Before judgment, no part of the money accruing 
from the sale of claimant's property can be presumed to have gone into 
the national treasury ; and since, by consent of the claimant, the Gov- 
ernment of Mexico remained unadvised of the act of the judge, no 
presumption can properly arise that the Government sanctioned his act. 

The charge of fraud against the vessel, judging from the statements 
of the agents of the claimant, was not wholly without foundation. The 
vessel is said to have cleared at New Orleans for Vera Cruz. We find 



her entering at Puebla Viejo, through the harbor of Tampico. [*] Upon 
the ground (as is alleged) that the cargo would not sell at a profit 
there, the cargo is reshipped, and the vessel cleared for New Orleans. 
That the reason given for the reshipment of the cargo and the clearance 
of the vessel for New Orleans was a mere pretence, to cover some other 
design, is very apparent from the statement of the account of sales of 
vessel and cargo at Puebla Viejo. The latter cost in New Orleans 
$7,676, and sold at Puebla Viejo, as stated, for $23,883.20 — more 
than three times the original cost. 

Upon a full consideration of the whole case, the Board is of opinion 
and decides that the claim is not valid against Mexico, and the same is 
accordingly not allowed. 

GEORGE EVANS, ) 

CALEB B. SMITH, } Commissioners. 

ROBERT T. PAINE, ) 



REMARKS ON THE OPINION OF THE BOARD IN THE 
CASE OF THE SCHOONER REBECCA. 

This vessel, having entered a Mexican port and sold a part of her 
cargo, then cleared at the custom-house at Tampico for New Orleans ; 
but before she crossed the bar was seized by the custom-house officers, 
charged with fraud, and proceedings were commenced against both the 
vessel and cargo before the judge at Pueblo Viejo. 

While under seizure, and proceedings for condemnation going on, the 
supercargo, consignee, and captain, agreed to the sale of the vessel and 
cargo, and the proceeds were deposited in court. The sale was made 
by the Mexican authorities ; and it distinctly appears that the motive 
of the claioaant's agents for consenting to the sale was to prevent the 
destruction of the vessel and deterioration of the property. If the 
vessel had remained only for a short time in the waters where she then , 
was, she would have been destroyed by the worms, and, if ultimately re- 
leased from the seizure, would have been worthless. 

The avails of the sale were deposited in the court, and the judge, 
having the money in possession, protracted the proceedings, but did not 
decide the case, and was afterwards accused of treason, and ran away 
with it. 

The Board ask the question, " Can the party claim against the Gov- 



[* Note. — There appears an obscurity in this sentence, which, as it charges the 
vessel with fraud, is too essential to be overlooked. It may be elucidated by adding 
after the word "Tampico" the following words: where she had no right to gO) 
hecausz she had not cleared out at New Orleans for that port. The decision in this 
case was drawn up by Colonel Paine, who pertinaciously insisted, (and the other 
members of the Board concurred,) in all cases, that our vessel had no right to 
enter any foreign port for which she had not cleared out on departing from the 
United States. Doubtless such was the idea intended to be conveyed in this ob- 
scure passage; and it is manifest from the context that the Board charged the 
vessel with fraud on that absurd ground, and based their adverse decision in part 
or the whole thereon. By referring to the Board's decision in the case of the 
schooner Susan, it will be seen that this point is fully set out, and, by the argument 
thereon, fully answered. See pages — and — .] 



10 

ernment under these circumstances'?" Though the question is not 
followed by a direct answer, the counsel understand the Board do an- 
swer that he cannot; the result shows that they do answer in the neg- 
ative.* 

It is important to the claimant that there should be no doubt here- 
after as to the Board's answer to this question ; and as a favor the 
counsel ask that this may be made more explicit than it appears to be 
in their written decision ; though the inference is clear, that they answer 
the question in the negative, yet a more direct and explicit answer is 
very much desired. 

There is not, nor can there be, any other question in the case, inas- 
much as the Board do not pretend that there ever was any decree of 
condemnation. 

There must be such a decree to divest the owners of the right of 
property, and to transfer it to the seizors : 

" The property of a neutral is not divested by capture and sale by 
' a belligerent, unless condemned as prize by a competent court." — 
1 Johnson, 471, Wheelwright vs. Depeyster, Supreme Court JVew 
York, S. P. 1806 ; Peters^ Adm. Decisions 2d, 345j District Court 
Pennsylvania, 1804. 

" The property of the original owner is not changed by capture with- 

* out condemnation." — 1 Cranch, 32, Talmon vs. Seaman. 

" Whoever sets up a title to property under a decree of condemna- 

* tion, is bound to show that the court has jurisdiction of the cause, and 
' that the decree of the court has been rightfully pronounced upon the 
' application of parties competent to ask it." — La JYereyda, 8 Whea- 
ton, 108. 

The fact that they did not follow up their seizure by a decree of con- 
demnation sustains a legal inference that there was no sufficient cause 
for the &;eizure ; and the inquiry whether there was or was not sufficient 
cause for the confiscation of the property is superseded by the fact that 
there was no sentence of condemnation. 

If it was not a matter aside from the case, it would certainly be easy 
to show that the facts sustain the legal inference of no good cause for 
condemnation. As it was a work of supererogation it was not much 
pressed in the former argument, and is only alluded to here. 

in another respect, it is presumed, the Board will desire to alter the 
language of their decision. The Board say : " It does not appear 
' that the Mexican Government had the slightest agency in causing or 
' suffering the wrong complained of to be done to the claimant ; but, on 
' the contrary, it appears that all knowledge of the wrong was sedu- 
' lously kept by the agents of the parties from the knowledge of that 
' Government." 

This assertion has excited considerable surprise. It must have origi- 
nated from some very strange and inaccurate notion of what the Gov- 
ernment is. It is not a pure abstraction ; but, so far as it acts or is 
acted on, it is, and can be nothing else than^ its official men. Their 
acts are the acts of the Government, their knowledge is the knowledge 

* Col. Paine has suggested that this paragraph seems to be disrespectful to the 
board; I most explicitly disavow any such intention. 



11 

of the Governtnent. It Can act in no other •^ay not have dny other 
knowledge. In this view of its functionaries, (and there can be no 
other,) how can the above^quoted assertion of the Board be correct 1 
The custom-house oflSicers and the judges of courts are as much a part 
of the Government as the Secretary of Foreign Relations, or of the 
Treasury, or any other officer of the Government ; their acts, in their 
appropriate sphere, and their knowledge of official transactions, are the 
acts and the knowledge of the Government, and involve the Govern- 
ment in responsibilities. 

How, then, can it be said that an act done by the Government is not 
known to the Government 1 The custom-house officers and the judge, 
being in fact a constituent part of the Government, inflicted the injury ; 
and though other public functionaries might not have been immediately 
cognisant of the wrong, it cannot in correctness be said that the Gov- 
ernment had no agency in, or knowledge of, the wrong. 

If there was nothing but the bare acts of the functionaries at Tam- 
pico, the attempt to set aside the claim in this case, upon the alleged 
ground of no agency or knowledge of the Government, would be sus- 
taining a defence — not a good one' — by a fallacious mode of argument. 

The above assertion is in still stronger conflict with the facts of the 
casCj for it clearly appears, in the very decision from which that asser- 
tion is extracted, that H. Didierj the agent of the ownefs, immediately 
after the transaction went to the city of Mexico and presented the case 
to Mr. Wilcox, the consul general of the United States, who laid the 
case before one of the Secretaries, took his advice, and it was followed. 
With this fact not only proved, but distinctly incorporated in the de- 
cision of the Board, it is said, in that Very decision, that the Govern- 
ment "had not the slightest agency in causing or suffering the wrong," 
and " that all knowledge of the wrong was sedulously kept, by the 
agents of the parties interested, from the knowledge of that Govern- 
ment." 

The Government was one of the parties in interest, and by her of- 
ficials (and it could act in no other way) did the wrong ; and yet it is 
said the Government had not the slightest agency in it. It could have 
no knowledge but the knowledge of her officials, atid they knew a,ll about 
the transaction, for they were the actors. 

The complaint was carried by the injured party to the city of Mexico, 
and laid before one of the principal Secretaries of the Executive depart- 
ment of the Government ; and yet it is said, strange as it may appear, 
that all knowledge of it was sedulously kept from the Government. 
And on this ground of no agency of the Government in acts done by its 
officers in their official character, and of no knowledge of a transaction 
whicn was at great pains and expense actually and promptly laid before 
one of the Secretaries of the Executive branch of the Government, 
through the agency of the United States consul general, the claim to 
indemnity for the loss of a valuable vessel and cargo is rejected. 

The counsel will submit, if he must, to such a decision ; but he can- 
not bring his mind to acquiesce in its justice. 

All which is respectfully submitted to the honorable Board on 
claims against Mexico. 

JAMES H. CAUSTEN. 

Washington, March 28, 1851- 



12 

Board of Commissioners on Claims against Mexico, 

April 15, 1851. 

ON REVIEW OF THE CLAIM OF JAMES W. ZACHARIE 
FOR LOSS OF THE SCHR. REBECCA AND CARGO. 

From the argument of counsel, in support of the motion to review, it 
appears that the meaning of the Board, in the former decision, was not 
understood. Technical objections are taken to several expressions 
used in the first opinion. We are asked to define what we mean by 
the term Government; and, in referring to a "query" put in the 
opinion, the Board is gravely required to answer it unequivocally. 

The tone of argument would not be considered altogether respectful, 
were it not that the counsel has denied in the margin all intention of a 
want of courtesy. The Board, in its former opinion, stated that the 
memorial was not sustained by the proofs, and that opinion is here re- 
iterated. The case as made out by the testimony, if it proves any- 
thing, shows that the judge before whom proceedings were probably in- 
stituted against the vessel and cargo, committed a fraud,. not only 
against the claimant, but also against the laws of his country ; and that 
the agents of the claimant not only did not make known this fraud to 
the chief political authorities of Mexico, but consented to withhold the 
knowledge of it from such authorities, and proceeded to make the best 
arrangement they could about the matter with the judge. The claim- 
ant was advised in 1822 of all these proceedings, and was also advised 
that he would, in a very short time, be informed of the result of such 
arrangement. After the lapse of twenty-two years, during which pe- 
riod the matter appears to have been sufiered to slumber, the claimant 
Writes to his former consignee and agent, to know if he can find any 
record of the proceedings against the vessel. None could be found, 
and he then proceeds, ili 1845, to obtain testimony to make up a case. 
It is not a little strange, if the claim possessed any merit, that the 
deposition of the consignee, to whom the arrangement with the judge had 
been confided, was not taken ; and it is equally strange that none of the 
correspondence with the supercargo, who, it appears, wrote in 1822, or 
with the captain or consignee, at the date of the event, is produced. 
These persons are now dead, and it is alleged their testimony cannot 
be had ; but this does not remove the necessity of producing something 
explanatory of the arrangement which was had with the judge. It is 
not necessary that the Board should express any other opinion of these 
omissions than to say that it is shown to its satisfaction that the claim- 
ant ought not to recover, and they therefore adhere to their former 
opinion disallowing the claim. 

GEO. EVANS, ) 

CALEB B. SMITH, > Commissioners, 

ROBERT T. PAINE, S 



13 



SCHOONER SCOTT: 

CASIMER PRIETO, Master; JAS. W. ZACHARIE, Claimant. 



STATEMENT OF THE CASE. 

The schooner Scott cleared at New Orleans on the 20th day of De- 
cember 1824, with a valuable cargo of lawful goods, bound for Vera 
Cruz ; and while upon the voyage, and when near that port, to wit, on 
the 4th of January, 1825, was forced near the Castle of San Juan 
d'Ulloa, and compelled, from the state of the wind and sea and the con- 
tiguity of the land, to come to anchor between the City of Vera 
Cruz and said Castle, within short range of the batteries of the city ; 
that immediately thereafter, without being boarded, warned, question- 
ed, hailed, or notified in any manner of any interruption in the trade 
to said port, the said city batteries opened their rapid and heavy fire 
upon the vessel, which soon stripped her of her masts and rigging, and 
so many of the gun shots struck in her hull as to cause her to fill 
rapidly with water ; whereupon, to save the lives of the officsrs and crew, 
it became indispensably necessary, and in the midst of the firing, to run 
the vessel on shore ; and in the attempt to do so, the vessel sunk, but 
the firing continued long thereafter. During its continuance, the officers 
and crew of the vessel, aided by some soldiers and laborers from the 
Castle who came to their relief, after great labor and exposure to the 
firing, from which some of the people were seriously injured, succeed- 
ed in saving from the wreck a small part of the cargo, chiefly much 
damaged, the residue being destroyed by the gun shots passing through 
the body of the vessel from side to side, and also by the salt water in 
which it was immersed and had to remain for some days, by which most 
of it was entirely destroyed. After the firing had ceased, which had 
extended to more than twenty-four hours, the vessel was raised by the 
master, crew, and laborers, at great expense, and repaired sufficiently to 
reach New Orleans, where she was still further repaired. The saved 
and damaged portion of the cargo was sold at the Castle. 

This case is marked with wanton barbarity, and resulted no doubt 
from an idle suspicion that the intention was to trade with the Castle — 
a suspicion that could have been easily determined by the slightest in- 
quiry, which the authorities of the city had the convenient means to 
make effectual at the first moment, viz : by hailing the vessel ; and as 
she was completely under the range of their guns, as the destructive 
use of them fully proves, so no possible act done or contemplated by the 
vessel would in any degree justify the violent outrage practiced on her. 
It was a naked, unprovoked, and violent wrong of the most aggravated 
character, and so gross and palpable as to render its turpitude self- 
evident. 



14 

There are two circumstances in this case, which, when brought to 
view, will require but little further : 

1st. The vessel's clearance, manifest, invoice, bills of lading, and all 
the other papers, clearly show the voj^age was intended for Vera Cruz ; 
and the character of the cargo is a full confirmation of that fact — the 
principal part of the cargo was made up of ^'^ Platillas,''^ being fine 
white costly German linens, particularly suited for the trade and use of 
the people of the city of Vera Cruz, but wholly unsuited to the use of 
soldiers and others at the Castle. The residue of the cargo was com- 
paratively trifling in amount, and probably equally well suited to either 
place. 

2d. The supplementary decree of blockade, of Dec. 20, 1824, was 
enacted only on the very day on which this vessel cleared and sailed from 
New Orleans, and the proof shows that she was not warned oJBF; hence, 
she could not by possibility have had knowledge of its existence. But 
the mere necessity of enacting this supplementary decree clearly shows 
that the prior paper blockade decree of October 8, 1823, had ceased to 
operate ; it had been either tacitly withdrawn, or gone into disuse, or so 
relaxed in practice as to require a new enactment to give it vitality. 

And in setting out this reviving or supplementary decree, the cause 
that produced it is disclosed on its face, to Avit : that a great change 
had taken place, by which Mexico was encouraged to look with confi- 
dence for success in her war with Spain. It runs thus : 

" Inasmuch as the nation finds itself happily in a state to sustain the 
independence which the glory of its arms obtained over those of the 
Spanish Government, making war until its formal acknowledgment, as 
is authorized by the common right and customs received by all the 
civilized countries of the globe — I command that, promoting and 
protecting the means of prosecuting it, the strict blockade of the 
Castle of San Juan d'Ulloa is continued, as already declared on the 
8th of October of the last year, [1823,] having efiect from beginning to 
end, upon the terms made known in that declaration." 
It thus appears that the decree of October 8, 1823, was inoperative 
when the vessel sailed on her voyage from New Orleans ; and that the 
ex post facto supplementary decree of December 20, 1824, could not, 
and did not, revive it as against this vessel, since she had not even 
knowledge of its existence ; and it conclusively follows, that there was 
no prohibitory laAv of Mexico against our trade to the Castle, if, con- 
trary to the fact, this vessel did intend to trade there. She was forci- 
bly prevented from entering Vera Cruz, and compelled to sell the saved 
fragments of her cargo at the Castle for a trifle. 

Having violated no law whatever, the naked wrong stands out in 
glowing turpitude, and gives the sufferer a clear right to the indemnity 
he seeks. 

The case of this vessel presents for the consideration of the Board 
the same questions in relation to the doctrine of blockade, that were 
raised and considered on the argument in the case of the"^usan. The 
undersigned flatters himself that it was shown in that argument, that 
the Castle never was in fact blockaded by an investing maritime force, 
and that it was therefore as open at all times, while held by the Span- 
iards, to neutral commerce, as any port in Mexico. No principle of the 



15 

law of nations is better established than that which allows neutral na- 
tions to trade freely with either belligerent, unless it be in articles con- 
traband of war, or to a port or place in the state of actual blockade. 

The proclamation of a blockade, unless there be in fact an actual suf- 
ficient blockading force stationed in the vicinity, is a mere nullity ; neu- 
tral nations are not required to regard it, and are not injured in their 
right by it. 

It is not deemed necessary in this case to reconsider the positions laid 
down in the case of the Susan, but merely invite the attention of the 
Board to the positions taken, principles invoked, and facts established, 
in that case, because they fully apply to this also. 

It will be assumed as well established, that the decree of the Supreme 
Government of Mexico of the 8th of October, 1823, was a mere paper 
blockade, and never had any validity in regard to neutral commerce with 
the Castle of San Juan d'Ulloa — a Spanish possession-^because there 
was no investment of the place by an actual force. If in point of fact 
it could be shown that there was, at the time of the emanation of the 
decree, an investing force, it had been subsequently withdrawn, or re- 
laxed ; and that fact alone would open the place to neutral commerce. 

The issuing of the supplemental decree of December 20, 1824, 
(document No. 15,) which was itself no less a paper blockade, proves 
that the previous decree had not been enforced, and the latter decree 
was intended to revive the former one which had become extinct. 

The deposition of Juan J. Presas proves that the former decree had 
not been enforced ; but that after it was promulgated, intercourse be- 
tween the Castle and the city of Vera Cruz had been again established. 

The same fact is also proved by the letter from the American Consul, 
(commercial agent,) of the 5th of January, 1825, [No. 17 B,] to the 
Secretary of State, in which he states : 

" Hostilities have again commenced^ between San Juan d'Ulloa and 
' Vera Cruz, and originated as follows," &c. ; and he adds : ^' The 
' firing continued about twenty-four hours." 

The firing alluded to by him is believed to be that which was open- 
ed upon the schooner Scott, which he says both commenced and ter- 
minated with that occasion, although it is certain that each party was 
within the range of the guns of the other. 

As the Castle drew its supplies from Vera Cruz, the commander 
would of course abstain from provoking its inhabitants to active hostil- 
ities as far as pra'cticable, and thus produce a relaxation of blockade ; 
since, on the other hand, the Castle could efiectually blockade and cut 
ofi" all commerce most completely with Vera Cruz ; and this mutuality 
of accommodation was in fact a relaxation of the blockade. On no 
other reasonable ground can the cessation of hostilities between the 
Castle and City be accounted for. It is seen, by No. 17 A, that shortly 
before the Scott arrived off Vera Cruz, another vessel, the brig James 
and Mary, of Philadelphia, from Gibraltar, also bound to Vera Cruz, 
put into Alvarado for advice, being under the apprehension that Vera 
Cruz was blockaded by the Spaniards, but had no supposition so un- 
reasonable as that the reverse was the case, viz : that the Castle was 
blockaded by the city of Vera Cruz. No one could pretend, however, 
that the James and Mary had not a right to go to Vera Cruz ; but, in 



16 

a spirit of cupidity, they decoyed her by delay and treachery, until 
they fitted out a vessel of war, expressly to capture her, which they 
accomplished, and brought her in "as a prize, on suspicion of having 
Spanish property on board," which was not true ; so that, blockade or 
no blockade, an American vessel could not escape from the cupidity of 
the merciless Mexican authorities. 

The supplemental decree of blockade, though dated the 14th of 
December, at the city of Mexico, was not known at Vera Cruz until 
the 20th of that month, which was the very day the Scott sailed from 
New Orleans. 

As a decree it was a nullity, so far as it was designed to affect neu- 
tral commerce with the Castle, because there was no investment of the 
Castle by an actual force. It could not affect the claim in this case, 
even if there had been an actual blockade ; because the Scott sailed on 
her voyage before she had, or could have had, any knowledge of it. 

Whether, therefore, her destination was to the Castle or the city of 
Vera Cruz, her voyage was a legal voyage ; whether she went to the 
Castle or to Vera Cruz, she went to a place where she had a perfect 
right to go, and neither belligerent had, in the condition of things that 
then existed, a right to interfere with her for trading with the other ; 
nor could she be rightfully injured for doing so. 

War had, in fact, though not by definitive articles of peace, ceased 
between Mexico and Spain ; but if it had been in a state of rigorous 
prosecution, any neutral nation had a clear right to trade with the 
other under the limitations before mentioned. 

As the Scott had not articles contraband of war on board, and was 
not bound to a port or place in a state of actual blockade, she had a 
right to trade with either belligerent, without incurring any penalty, or 
exposing herself to any injury from either. 

She had unquestionable right to trade with the Castle, a Spanish pos- 
session, as with Vera Cruz, a Mexican possession, so long as neither of 
them were in a state of actual blockade. The Castle, as has been 
satisfactorily shown, Avas no more blockaded than Vera Cruz. There 
was, in truth, no blockading force stationed about either. Under these 
circumstances, suppose the Castle had opened its guns on a neutral ship 
in the harbor of Vera Cruz, and destroyed her, would not such an act 
have furnished just grounds for reclamation "? By what right or under 
what law could Spain have resisted such a claim 1 There could be no 
other ground for resisting it, but the broad one that neutral nations 
have no right to trade with belligerents. Such a position no one will 
attempt to maintain. She could not justify the outrage upon the 
ground that the neutral ship was in delicto by trading at a blockaded 
port, for Vera Cruz was not blockaded. 

The case under consideration differs no way from the case supposed, 
except the parties are reversed. By not putting the Castle in a state 
of actual blockade, Mexico left it open to neutral trade; she had no 
right to injure a neutral carrying on that trade, because it was clearly 
legal by the law of nations. 

It is the duty of a neutral power to protect in its harbor the public 
armed vessels of one belligerent against the attacks of the other. In 
the well-known case of the British squadron's attack upon the American 



IT 

'privateer General Armstrong in the harbor of Fayal, the Portuguese 
Government have ever been held liable for the loss of that privateer. 
Our Government has always considered this a well-founded claim 
against that of Portugal, (see Senate document, 1st session 29th Con- 
gress, No. 349,) and the latter Government has only resisted it on the 
ground of inability to prevent the injury. Is not this case stronger, 
where a neutral vessel, pursuing a jpermitted and legal trade, enters 
the harbor of one belligerent, and is destroyed by the other belligerent? 
That trade could only be interrupted by a blockade, unless it was a 
trade in articles contraband of war. The manifest of the cargo shows 
that there was not on board the Scott a single article of that descrip- 
tion. 

The view taken of the claim in this case renders it quite immaterial 
to inquire into the intention of the claimant as to the place of trading. 
Considering the nature of the cargo and the proofs in the case, the 
inference is strong that the Scott was fitted out for Vera Cruz *, and 
her going into the vicinity of the Castle, and afterwards trading with it, 
was accidental in the first instance, and then forced to it by the violent 
acts of Mexico herself. Shall she now be permitted to plead her own 
wrong to justify the consequences flowing from it? The vessel had an 
equal right to traffic with either of them ; there was no blockade, and 
no articles contraband of war were found on board. 

The situation of the castle made the harbor of Vera Cruz to some 
extent common to both powers. If the schooner is to be regarded in 
that part of the harbor exclusively belonging to Mexico, (as was clearly 
the case, since she was under the range of her guns,) then Mexico was 
bound to protect her, and had adequate means at hand to do so. To 
that end it was not necessary to fire a single gun ; and the outrage is 
the more flagrant by not only withholding due protection, but inflicting 
the wrong. But considering the vessel in that part of the harbor over 
which the Castle could properly claim sole or concurrent control, which 
is the view most favorable to Mexico, she ought to have been safe 
against the attack from the Mexican batteries, for she was where by 
the law of nations she had a right to be:; -she was in a trade which that 
law permits to neutral vessels. 

Could it be supposed that the Board would give any effect to a paper 
blockade, still the claim would stand on substantial grounds. 

The decree of October 8, 1823, if it had ever any force, (and it has 
been shown that it could not,) had ceased. This the Mexican Govern- 
ment admits by the promulgation of that of the 14th December, 1824, 
which was confessedly designed to revive the former one. This latter 
decree was not known in Vera Cr«z until the 20th of December, 
and that was the very day on which the Scott left the port of New- 
Orleans. She not only did not, but could not, have had any knowledge 
of this paper blockade. 

Among the documents in this case (No. 12) is the original letter 
from Captain Prieto to the United States Consul at Alvarado, written 
on the 6th of January, 1825, only two days after the attack on the 
schooner. In that letter the Captain states, (the letter was written at 
the Castle :) 

" When I sailed from NewtOrleans I knew not that this Castle was 
.2 



18 

' in a state of blockade, and I was not boarded during the passage by 
' any Mexican cruiser to advise me of the existence thereof, if any such 
' does exist. It is, besides, a notorious fact, that until the present 
^ period American vessels have had free communication with this Castle, 
' and the trade has always been considered legal ; consequently I can- 
' not conceive why my vessel has been treated by the Government of 
' Vera Cruz worse than an enemy, for the forts of that town did not 
' fire upon the Castle, a declared foe, but wreaked their whole vengeance 
' upon a defenceless pilot boat, bearing the flag of a friendly nation." 

It cannot be drawn in question that the vessel sailed without any 
knowledge of even the paper blockade of the Castle. It is proved 
beyond all controversy. 

The voyage was lawful in its inception. No notice on the voyage 
was given of the pretended blockade ; it was, therefore, lawfully pur- 
sued ; and the vessel came to anchor near the Castle without being 
warned off, or receiving the slightest notice even of the decree of the 
14th December; it was, therefore, lawfully ended. From beginning 
to end, all was fair and innocent on the part of the vessel. She had 
run no blockade, because, in fact, there was none to run. She had 
visited the Castle without any knowledge of even an intention on the 
part of Mexico to interrupt neutral trade. She had done no illegal act. 
She had respected ail belligerent rights. Her object was legal, and all 
her conduct in prosecuting it was innocent. On no conceivable ground 
could Mexico object to her course. The attack upon her by the Mex- 
ican batteries was in every conceivable view unjustifiable, unless the 
vessel was in delicto, by having on board articles contraband of war, or 
violating an actual blockade ; and on neither of these grounds could she 
be inculpated. 

The policy of Spain, in excluding her southern possessions from the 
world of commerce, found them, at the date of their independence, in 
a state of comparative inexperience with respect to the operation and 
effect of international laws and usages, such as govern and bind nations. 
That inexperience led Mexico into the error, (which, indeed, is not con- 
fined to her,) that a declaration of war carries with it authority to seize, 
capture, and condemn, indiscriminately; and she has acted under that 
untenable assumption. On this point the following corrective seems to 
be proper : 

"It may be considered as the opinion of all who have written on the 
ju7'a belli, that war gives the right to confiscate, but does not itself 
confiscate the property of the enemy. * * * That the declara- 
tion of war has only the effect of placing the two nations in a state of 
hostility, of producing a state of war, of giving those rights which war 
confers ; but not of operating by its own force any of those results 
(such as a transfer of property) which are usually produced by ulterior 
measures of Government. * * * jf^ therefore, enemy's property 
had come into the ports of the United States after the war [had com- 
menced,] and the President had declined to issue letters of marque 
and reprisal, there was no act of Congress which, in" terms, declared 
it confiscated, and subjected it to condemnation. If, nevertheless, it 
was confiscable, the right of confiscation resulted not from the ex- 
press provisions of any statute, but from the very state of war, which 



19 

' subjects the hostile property to the disposal of the Government. But 
' until the title should have been divested by some overt act of the 
' Government and some judicial sentence, the property would unques- 
' tionably remain in the enemy owner ; and if a peace had intervened, 
' it would have been completely beyond the reach of subsequent con- 
' demnation. There was, then, no distinction recognised by any act of 
' Congress between enemy's property which was within the ports of the 
' United States at the commencement of the war [with Great Britain, 
' of 1812,] and enemy's property found elsewhere. Neither were de- 
' clared ipso facto confiscated, and both were merely confiscable." — 
Wheaton on Captures, ed. of 1815, pp. 20-24; Sth Cranch, 60. 

If enemies' property is thus entitled to pi'otection and security, even 
by a belligerent, in a state of actual war, with how much more reason 
is the property of an innocent neutral entitled to at least an equal pro- 
tection'? 

The fact of an existing war between Mexico and Spain did not there- 
fore confer on Mexico any right to assail the vessel in question. 

Another supposed error into which Mexico appears to have fallen is, 
that a neutral vessel, having cleared out for one port with intention to 
trade at a different port, thereby subjects herself not only to suspicion, 
(which appears to be all-sufficient for her purpose of capture and con- 
fiscation in many cases,) but to conviction of intended wrong. On that 
point a single authority need be cited : 

'' It is well known that, although it is the ordinary form of clearing 
' out from a belligerent country to bear an ostensible destination to a 
' neutral port, yet no one imputes that as a fraud ; nor is it considered 
' as such an act as would justly subject neutral property on board neu- 
' tral ships to be molested on that account," &c. — Rob. Ad. Rep., vol. 
2, p. 88. 

The undersigned considers an apology due to the Board for offering 
either argument or authority to show the innocence of our vessels clear- 
ing out for one port and going to another port, since it has been almost 
the daily practice, from all our principal seaports, from the origin of our 
Government. 

Another evident error into which Mexico appears to have fallen is 
with regard to the principles of blockade — even five years after the 
passage of the decree of October, 1823. In 1828 Mr. Poinsett nego- 
tiated a treaty with Mexico. In the discussions leading thereto, the 
following protocol took place and was recorded. (See Senate Doc. 2, 
25th Cong., No. 351, p. 195.) 

^^ Protocol of a conference held between J. R. Poinsett, Esq., and his 
Excellency Don Sebastian Camacho, on the 1st of March, 1828. 

[Extract.] 
" His Excellency Don Sebastian Camacho observed, that as doubts 
' had occurred to his Government on the interpretation of some of the 
' articles of the treaty of amity, navigation, and commerce, between the 
' United States of America and the United Mexican States, signed on 
' the 12th day of February, [1828,] he had sought this conference in 
' order to their being explained and elucidated. 



20 

" The first was, the meaning attached to the concluding paragraph 
of the 19th article, in which it is declared ' that such places only are 
blockaded which are actually blockaded by a belligerent force capable 
of preventing the entry of the neutral;^ because, in the relative 
maritime strength of the two contracting parties, Mexico might block- 
ade a Spanish port with two or three frigates, and the Government of 
the United States of America might break through that blockade by a 
superior force. 

" Mr. Poinsett replied, that such an act would be considered hostile, 
and clearly was not meant by the spirit or the words of the 19th 
article. The principal object of inserting that article was to prevent 
a practice which had prevailed in Europe, of declaring a port, or even 
a long line of coast, in a state of blockade, and of capturing vessels 
bound thither, although the belligerent should not have an adequate 
force before such port, or along such line of coast, to maintain a 
blockade. It was then agreed by both parties, that the meaning of 
the article should be understood to require a suflScient force to keep 
off neutral merchant vessels, and by no means to authorize the forcing 
of the blockade by vessels of war. 

" His Excellency Don Sebastian Camacho said that this article 
offered another difficulty. A blockading squadron might be driven off 
by stress of weather ; and it would be unjust in such a case that a 
neutral should be allowed to avail itself of such temporary discontin- 
uance of the blockade. 

" Mr. Poinsett replied, that where the blockade was by notification, 
and the neutral vessel had sailed from the port knowing of the exist- 
ence of such blockade, the temporary discontinuance of the blockade 
from accidental causes, if it did not amount to an interruption or 
breaking up of the blockade, would not protect the neutral from cap- 
ture and condemnation on leaving the port, or on the place falling 
into the hands of the belligerent ; and that the cases wherein such 
protection should be extended to a neutral are recited in the 21st 
article, viz :: 

"Art. 21.. And whereas it frequently happens that vessels sail for a 
port or place belonging to an enemy, without knowing that the same 
is besieged, blockaded, or invested, it is agreed that every vessel so 
situated may be turned away from such port or place, but shall not 
be detained ; nor shall any part of her cargo, if not contraband, be 
confiscated, unless, after warning of such blockade or investment from 
the commanding officer of the blockading force, she should again attempt 
to enter the aforesaid port j but she shall be permitted to go to any 
other port or place she may think proper. Nor shall any vessel of 
either of the contracting parties, that may have entered into such port 
before the same was actually besieged, blockaded, or invested, by the 
other, be restrained from quitting such place with her cargo ; nor, if 
found therein after the surrender, shall such vessel or her cargo be 
liable to confiscation, but she shall be restored to the owner thereof. 

" It was agreed that this explanation should be considered as the 
correct meaning of the ends of the article," 

It thus appears that Mexico herself agreed to a,nd confirmed the pre- 



21 

cise doctrine contended for in this case ; and she could not complain if 
there be exacted from her the measure of her own principles. 

This appears to have been a flagrant case of outrage, which entitled 
the claimant to a full indemnity for all actual and consequential loss he 
may have sustained. 

The statement of loss will be found on the next following page, being 
the same that was filed in the Department of State on the 21st March, 
1845, per original No. 10, deeming it most proper that the claim here- 
tofore presented to the Government should now be submitted to the 
Board. 

All which is respectfully submitted to the honorable Board. 

JAMES H. CAUSTEN. 

Washington, February 3> 1851* 



Board or Commissioners Claims against Mexico, 

February 14, 1851. 

SCHOONER SCOTT— JAMES W. ZACHARIE, CLAIMANT. 

This claim is similar, in its essential features, to that growing out 
of the capture of the schooner Susan, which has already been decided 
by this Board not to be valid, and must be disposed of upon the prin- 
ciples which governed the decision of that case. 

Upon the application of the counsel for the claimant, the Board has 
very carefully re-examined the grounds upon which that decision took 
place, and finds no occasion to reverse the judgment to which it was then 
conducted. 

The injury for which indem.nity is sought in the present case was 
occasioned by the firing of the Mexican batteries, in the harbor of 
Vera Cruz, upon the schooner, then lying at anchor near the Castle of 
San Juan de Ulloa. 

This occurrence took place in January, 1825, when the Castle was 
in the possession of some of the military forces of Spain, with which 
nation Mexico was then waging her war of independence. 

Spain had been, before that time^ driven from all her possessions in 
Mexico, except this strong fortress, of which a small body of her troops 
had retained possession for a period of more than three years, against 
the most strenuous efibrts of Mexico to expel them. 

During a portion of that time, very active hostilities were kept up 
between the Castle and the Mexican batteries and forces on shore, and 
during other portions there was, to a considerable extent, a cessation 
of active operations, and some degree of intercourse appears to have 
been carried on between the Castle and the city. 

Peace, however, was by no means concluded between the two coun- 
tries, and Spain had not relinquished her purpose of attempting the 
reconquest of Mexico. 

During the same year, she made an unsuccessful effort to relieve 
the Castle, and to invade the Mexican territory. It was not until late 
in the autumn of that year that the Spanish troops in the fortress, 



22 

having been reduced to the last extremity, were compelled to siirrendera 
Niles' Register of December 31, 1825, says : 

" Gen. Coppinger, late of Florida, commanded at San Juan de Ulloa 
at the time of its surrender, and certainly held out as long as he could* 
Cats and rats had been eaten, to prevent starvation ; and so reduced 
was the means of subsistence, that sentinels died at their posts while 
under arms* More than four-fifths of the garrison perished by the 
scurvy." 

This extract shows with what degree of vigilance and ability Mexico 
had carried on hostilities against the Castle. Of the means Avhich she 
employed to effect its reduction, some account is given b)^ Mr. Ward, in 
his book on Mexico, vol. 2, page GO. On the 11th March, 1825, after 
an absence of- about one year, Mr. Ward returned to Mexico, and says : 
" From the moment that we approached the shores of Vera Cruz, an 
astonishing difference became visible in the state and appearance of 
everything around us. The Castle was indeed still held by a Spanish 
garrison, and the harbor closed in consequence to foreign vessels, but 
the firing had long ceased ; the siege being converted into a blockade, 
in which a number of Mexican schooners and gun-boats were em- 
ployed, while the Castle was occasionally supplied with fresh provisions 
by the Spanish flotilla from Havana. The island of Sacrificios, where 
Ave again anchored, and which I had left a year before a barren and 
desolate spot, had been converted into a regular fortification^ under 
which the Mexican gun-boats sought yjrotection on the approach of 
the Spanish fleet. Mocambo, too, had assumed a formidable appear- 
ance," &c. 
These were the means which Mexico was then employing, and had 
been employing, to compel the surrender of the garrison. 

Of her purposes she had, as well by these means as by her public 
declarations, given notice to the world. 

A decree was issued on the 8th October, 1823, declaring the Castle 
of San Juan de Ulloa to be in a state of blockade ; and by another de^ 
cree of 20th December, 1824, it was announced that the strict blockade 
of the Castle was continued, and all the provisions of the previous de- 
cree were declared to be in full force. The works upon Sacrificios and 
Mocambo, both in the immediate vicinity of the Castle, and designed to 
aid in its reduction, were erected in 1824 ; and every indication of a 
more active effort on the part of Mexico to compel the garrison to sur- 
render appears to have been given. 

In such a state of things, the schooner Scott was cleared from New 
Orleans for Vera Cruz, and sailed on the 20th day of December, 1824. 
The claimant insists that she undertook a lawful voyage, and was 
honestly bound for the Mexican port of Vera Cruz, and not to the Cas- 
tle of San Juan de Ulloa ; and he avers that she was fired upon and 
sunk by the Mexican batteries, from an " idle suspicion " that she in- 
tended to tr'ade with the Castle. 

This is a question of fact necessary to be, in the first place, clearly 
settled. 

The Castle of San Juan, it is understood, entirely commands the 
harbor of Vera Cruz ; and foreign vessels could not therefore with safety 
enter that port. Indeed, it is v^ell known that, ov/ing to the possession 



of the fortress by the Spaniards ^ and the hostilities between it and the 
city, Vera Cruz became, in a great degree, deserted, and all the com- 
mercial business was transferred to Alvarado. — Wardh' Mexico^ 2d 
vol., pp. 6 and 7. 

But in the opinion of the Board there is very decided proof, not only 
that it was the intention of the schooner to trade with the Castle, but 
that the fact of trading had actually commenced, at the time the firing 
was opened upon her by the Mexican batteries. 

The captain of the vessel, upon his return to New Orleans on the 
3d day of March, 1825, noted a protest, in which he stated that "he 
' had experienced loss and damage on his outward passage by an attack 
' on said vessel from the forts of Vera Cruz, soon after she anchored 
' near the Castle, the particulars of which he would make known at 
' more leisure." And on the 8th of the same month he appeared with 
his mate and two of his crew, and extended the protest, of which the 
following is an extract : 

" Nothing material occurred on the outward passage aforesaid^ until 
' the 4th of January last, when the weather being cloudy, &c., at 3.30 
' P. M. saw the Castle of San Juan de Ulloa; at 4.30 P. M., got a 
' pilot from that fortress ; at 5.20 P. M., came to anchor, &c. Got 
' the boat out, and the captain Avent on shore. At 6.40 the boat re- 
' turned, and brought off two launches from the Castle for cargo. La- 
' dened these launches, and sent them ashore, when the fort at Vera 
' Cruz fired one shot a,t the said schooner, which passed without doing 
' much damage." 

It is thus established beyond all controversy that the vessel was 
actually engaged in trade with the Castle at the time she was fired 
upon by the Mexican batteries. Two launches had been loaded from 
her, and sent to it, before the firing commenced. Nor is there any 
reason to doubt that the attack^ resulting in great injury to vessel and 
cargo, was induced by this act of trading. 

It is urged that the cargo, as exhibited by the manifest, was not 
suited to the wants of the garrison ; and it is hence inferred that the 
voyage was not in fact undertaken to that fortress; 

The proof is too clear to admit of any doubt upon the subject, even 
if the manifests were entitled to the most implicit confidence. 

Besides, it is well known that many cargoes were landed at the 
Castle, intended to be smuggled into the city in violation of the revenue 
laws of Mexico. This was especially the case prior to the decree of 
8th October before referred to. 

Mr. Taylor, the Consul of the United States at Vera Cruz, in a let- 
ter to the Department of State under date of April 6, 1823, says : 
" The fort, too, is turned into a place of deposite or trading house, 
' where cargoes are landed, deposited, or sold, and from thence smug- 
' gled into Vera Cruz." 

It being established to the entire satisfaction of the Board that the 
vessel and cargo, at the time of the injuries complained of, were actu- 
ally engaged in carrying on trade with the Castle of San Juan de Ulloa, 
then held by the Spanish arms, the question next to be considered is, 
whether this was a violation of the belligerent rights of Mexico. 

It has been urged very strenuously, on behalf of the claimant, that it 
was not Buch violation ; that the blockade of the Castle was a m^e 



2^ 

paper Blockade, not binding upon neLiilrals ; that Mexico had not suffi- 
cient power to enforce it,- or to cause it to be respected;' that the 
schooner had never been warned off, without which, it is contended, she 
was not liable to interruption. 

A blockade is understood to be, in strictness of language, applicable 
only to ports, harbors, or coasts, accessible by sea for commercial pur- 
poses. Its object is, to harass the enemy by obstructing or annihilating 
his commerce,- and thus to induce him to conclude a treaty of peace. 
It does not contemplate a surrender of the port or place blockaded, and 
is not to be regarded as a mere military operation. 

"There is an important distinction," says Duer on Insurance, vol. 1, 
p. 657, " between a maritime blockade and a military siege. The sole 
' object of the blockade is, to distress the enemy by the suspension of 
^ his commerce. It does not generally look to the surrender or reduc- 
' tion of the blockaded port, nor does it implj' the commission of any 
' hostilities which the inhabitants are necessarily required to repel.- 
' On the other hand,- the object of the military siege is to reduce the 
' place, whether by capitulation or otherwise, into the possession of the- 
*' besieging power." 

There can be little doubt that the purpose of Mexico, in its opera- 
tions against the Castle, whether by sea or land, was to effect its re- 
duction. It was a military fortress^ and not a commercial port. The 
suspension of its commerce or trade, if it had any, was in no way cal- 
culated to injure Spain, or to induce her to enter into a treaty of peace.- 
The object of Mexico was to wrest from her enemy a strong and com- 
manding military post, the possession of which enabled her to prolong: 
the contest, and afforded facilities for renewed attempts at invasion and 
subjugation. 

Mexico had the unquestionable right to effect this important object 
in any mode she deemed suitable, conforming only to the law of nations 
and the usages of modern warfare. 

She had the right to exclude all intercourse or^communication what- 
ever with the Castle. 

The mode adopted appears to have been taken upon deliberation } 
and that it was entirely st^ccessful, has been already shown by the ex- 
tracts from Niles' Register before given. 

The following extract from "Poinsett's Notes on Mexico," p. 23, 
shows the purpose and the mode of accomplishing it which Mexico had 
in view, if further proof upon that subject be necessary. 

Mr. Poinsett, on his way to the city of Mexico, was in Vera Cruz in 
October, 1822; and giving an account of an interview he had with 
General Santa Anna, then Governor of the city, says : 

" The Governor took me aside to talk of his plans for taking the 
' Castle. He proposes to blockade it by water, to construct a battery 
' on each extremity of the harbor to prevent the entrance of shipping^ 
' and to have — I don't know how many — mortars arranged behind the 
' city, to shower shells into the Castle." 

These plans appear to have been carried into execution. The decree 
of 8th October, 1823, was promulgated, and the Castle was eventually 
compelled to surrender. 



In the opinion of the Board, the principles of law applicable to merely 
commercial blockades do not apply to a state of things like this. 

The entire operation against the fortress must be regarded as a mili- 
tary one, having in view and adapted to effect the reduction of a strong 
military post. 

It is said that there is no proof in the case showing that Mexico had 
the power to enforce the blockade. It might be sufficient to say that 
there is no proof to the contrary. But the argument seems to assume 
that the Board are confined to the proofs which are presented by the 
claimant himself. 

It must be recollected that the proceedings before the Commission 
are altogether ex parte. No adversary party is present, or has oppor- 
tunity to be heard. 

If the Board were to be confined to the claimant's own proof, it would 
be quite easy to sustain any claim whatever. 

Indeed, it is urged in the case of the Susan, that when a capture is 
proved, a sufficient claim is made out, unless it be shown by Mexico 
that there is justifiable ground for it; and not only so, but that Mex- 
ico must go still further, and show a regular condemnation by a court 
of competent jurisdiction ; and the rules of evidence applicable to trials 
at common law between individuals are cited to establish these po- 
sitions. 

The Board does not yield to this argument. Each claimant must 
establish every fact essential to the support of his claim. If the ground 
of reclamation be that a capture or a condemnation was umvarrantable, 
that must be established. 

There can be no such distinction here as exists in trials between in- 
dividuals of a prima facie case, sufficient to put the adversary on his 
defence, for the reason that there is no adversary. Neither Mexico, 
nor the United States, who has assumed the obligations of Mexico, has 
the opportunity of repelling the proofs submitted by claimants, except 
so far as public documents furnished from the archives of the Govern- 
ment may be regarded as affording such testimony. 

The Board does not, therefore, consider itself as limited to the papers 
which the claimants deem it for their interest to present to its consid- 
eration. 

Public events, facts or occurrences of general notoriety, published 
accounts, and documentary records, are all suitable and proper to be 
weighed as evidence in their bearing upon particular cases. 

Judging from the evidence furnished by these and similar sources, 
the Board is far from coming to the conclusion that Mexico was so de- 
ficient of means to enforce her decree of blockade, that it was not obli- 
gatory upon neutrals. 

The harbor and the access to the Castle was entirely commanded by 
the land batteries, while the gun-boats and schooners-of-war before 
spoken of were sufficient to capture all commercial vessels hovering in 
the vicinity. 

These efforts and preparations on the part of Mexico must have been 
notorious to all persons. trading in that quarter; and whoever undertook 
a voyage to the Castle, must be held to have entered upon it with full 
knowledge of all the hazards to which it was exposed. 



26 

Indeed, there is evidence before the Board, filed in another case by 
the present claimant, tending to show that the existence of the block- 
ade was so well known in New Orleans, as to be guarded against by 
insurers in policies upon vessels bound to Vera Cruz. 

An opinion given by the Supreme Court of Louisiana, in May, 1837j 
in a suit upon a policy of insurance on the schooner Constitution and 
her cargo, is among the papers filed by the present claimant in that 
case. The court say: " This action is brought on two policies of insur- 
* ance, one on the schooner Constitution, and the other on her cargo, 
' from the port of New Orleans to Vera Cruz. Both vessel and goods 
' are warranted to be American, and that the former shall not force 
' the blockade.''^ 

The Constitution sailed upon the voyage in June, 1824, and was soon 
after captured, upon the allegation that she was bound for the Castle. 

This capture, and the grounds upon which it was made, must have 
been known at New Orleans. 

The blockade spoken of in the policy could be no other than the 
blockade, so called, of the Castle ; and when it was known that vessels 
were actually seized and captured on pretence that they were boUnd for 
the Castle, there is little ground for the argument that it was incum- 
bent on Mexico to warn off vessels thus actually employed, before she 
could lawfully interrupt them. 

In the argument addressed to the Board for a re-examination of the 
case of the Susan, it is said that the Board had fallen into error in sup- 
posing that it had been admitted that the vessel had ever been con- 
demned; and if so, that it was by a prize court of competent juris- 
diction. 

The memorial by itself does not, it is true, make that distinct ad- 
mission; but the letter of Messrs. Taylor, Sicard, & Co., of 9th Janu- 
ary, 1825, to the claimant, says, speaking of the Susan: "Vessel and 
' cargo condemned and sold — a very summary process. We are igno- 
' rant of all other facts ^ save that of her capture and condemnation.'''' 

When, therefore, the memorialist asserts that "it is understood" 
Vessel and cargo were condemned, and files a letter from his correspond- 
ents containing the statement above quoted, the Board did not suppose 
it would be going too far to consider that fact as admitted. 

But it is further urged, that if condemned, it was not done by a court 
of competent jurisdiction, and that the proceedings were not regular. 
And it is urged that Mexico, at that time, had no established courts 
competent to adjudge upon questions of prize. 

The Board does not find any sufficient proof of these allegations. 

The letter of Messrs. Taylor & Co., before referred to, saj^s: " Our 
' W. T. has just been notified of the condemnation of the McDonough's 
' cargo, by the marine tribunal of the place, from which decision he 
' appeals to the Supreme Coui't at Mexico." 

There is no intimation that this was not a regular proceeding, and a ■ 
court of competent jurisdiction. 

It appears also, in the case of the Constitution, that proceedings were 
commenced and prosecuted before the same or a similar tribunal, from 
whose decision an appeal was also taken ; and that these defences were 
set up and conducted by Mr. Taylor, the Consul of the United States 
at Alvaraido, 



27 

The hcmse ^dth which Mr. Taylor was connected were the corres- 
pondents of the claimant, and communicated to him intelligence of the 
capture of the Susan. 

Is it reasonable to suppose that Mr. Zacharie did not reply to that 
letter ? That he did not apply for and obtain information of all the cir- 
cumstances connected with the occurrences 1 That if there had been no 
regular proceedings, no condemnation, no proper court, he would not 
have been fully informed of it 1 

Did all correspondence between the claimant and his commercial 
friends, in reference to this matter, cease with that first communication '? 

It is wholly impossible to admit any such inference. 

Since the organization of this Board^ it is true, the claimant has en- 
deavored to obtain from Mexico the records of the proceedings in the 
cascj and thej' have not been furnished. 

But is the Board thence to infer that there was no Court and no pro- 
ceedings 1 These occurrences took place twenty-six j-ears ago ; and 
since that time, Mexico has undergone many revolutions^ and suffered 
much civil commotion. Is it unreasonable to suppose that her omission 
to furnish documents called for may be owing to a much more excusa- 
ble cause than has been attributed to her 1 That her archives and 
records may have been rifled and destroyed, in some of the many scenes 
of violence and anarchy through which she has passed 1 

If the injuries now complained of had in fact been sustained in the 
manner now stated, and without any justifiable cause on the part of 
Mexico, it is impossible to account for the long neglect of the claimant 
to seek the interposition of his own Government, or to take any steps 
for obtaining redress. 

These claims were not presented to the Joint Commission under the 
Convention of 1839, nor does it appear that they were ever in any 
way brought to the notice of the Government of Mexico. Mexico, 
therefore, has never had the opportunity of answering the allegations, or 
repelling the proofs upon which they rest ; nor were they brought to the 
notice of the Government of the United States until 1845. 

The motive for presenting them at that time was probably that they 
might be in a condition to be presented to a new Commission, if one 
should be provided for, with similar provisions to that of 18-39. 

The claimant, it is true, addressed a letter to Mr. Livingston, then 
a member of Congress j in January, 1825^ upon the subject, but it does 
not appear that it was ever communicated to the Government, or made 
the ground of reclamation against Mexico. 

The Consul of the United States^ Mr. Taylor, also wrote the letter 
before referred to, stating the fact that the Scott had been fired upon 
by the Mexican batteries ; but he only alludes to it as being the occa- 
sion of the renewal of hostilities between the city and the Castle, and 
not as an aggression upon the right of neutrals, or an act unwar- 
ranted by the circumstances of the case. 

Is it reasonable to suppose that, if the wrongs complained of had 
been inflicted in the wanton manner stated, the claimant would have 
been so long silent 1 That the Consul, of whose zeal in behalf of 
American interests there the Board has many proofs, would not have 
exerted himself with his usual energy 1 



28 

Is it not rather more reasonable to conclude that, through his corres- 
pondents there, who had every motive to defend his rights, he was fully 
informed of all that had taken place, and was assured that there was 
no ground upon which a reclamation through his oAvn Government could 
be sustained^ 

The claimant assigns reasons why these claims were not presented to 
the Joint Commision ; but, in the opinion of the Board, they are quite 
insuflScient to impair the very strong presumptions growing out of his 
total omission to take any measures for obtaining redress, at the time 
of the occurrences complained of, and for so long a period afterwards. 

Exception is also taken, in the case of the Susan, to the conclusion 
which the Board came to, that she was taken " near the Castky'^ and 
the assertion is reiterated, that she was captured at sea. 

It appears by the protest of the master, that the vessel was first sent 
into the "port of Sacrificios," which was nothing more than a place of 
shelter for the Mexican gun-boats, under the batteries there erected. 

If taken at sea, it is by no means probable she would have been 
sent there, but directly to Alvarado, where she was finally taken. 

The Consul, Mr. Taylor, states, in the letter referred to in the for- 
mer opinion of the Board, that she was taken " off the Castle^'' a phrase 
which implies that she was in its immediate vicinity. 

Without further extending this opinion, or enlarging upon other topics 
presented in the arguments of counsel, the Board is constrained to ad- 
here to the decision already made in the case of the Susan, and to de- 
cide, that the claim set forth in the memorial of J. W. Zacharie, for 
injuries to the schooner Scott and cargo, is not valid, and the same ac- 
cordingly is not allowed. 

GEO. EVANS, ) 

CALEB B. SMITH, \ Commissioners. 

ROBERT T. PAINE, ) 



Washington, January 28, 1851. 
Gentlemen : I have filed for trial, claims for the schooner Rebec^ 
ca and cargo ; the schooner Constitution and cargo ; arid now file here- 
with the claim for the schooner Susan and cargo — in all of which the 
question of blockade is in some degree involved ; and other cases of like 
character will also be submitted for your decision. 

But as only one of them, the Susan, sailed directly for the blockaded 
place, and the argument on the subject of blockade is in that case di- 
rectly and elaborately set forth, therefore I respectfully suggest that 
the convenience of the Board would be greatly facilitated by making 
that one (the Susan) a pioneer case to the others, in their examinations. 
I am, with great respect, your obedient servant, 

JAMES H. CAUSTEN. 
To the Hon. the Board on Claims against Mexico. 



29 



SCHOONER SUSAN: 

JAS. NEWMAN, Master; JAS. W. ZACHARIE, Claimant. 



STATEMENT OF THE CASE. 

The schooner Susan sailed from Baltimore on the 10th of November, 
1824, cleared for the Gulf of Mexico, having on hoard a lawful cargo 
of wines and provisions. 

While on the voyage out, she encountered severe weather, which 
forced her to put into the port of Havana for shelter and repair ; and 
after a short delay there, without reducing or augmenting her cargo, 
she resumed the voyage ; and in the prosecution thereof — to wit, on the 
20th of December, 1824 — she was captured at sea (without any warn- 
ing or notice of any blockade) by the Mexican national schooner of war 
" Anahuac," and sent by the captors as prize into Sacrificios ; and, on 
reaching that port, the captain, supercargo, and creAV, (with the excep- 
tion of one seaman,) were removed from the Susan, and confined on 
board a Mexican gun-boat. 

On the 3d of January, 1825, the captors carried the Susan to Alva- 
rado, where she was forthwith, on the same day, condemned, {pro for- 
ma., as supposed,) and sold by " a very summary process," founded on 
and " charged with the intention of being bound to the Castle ;" as is 
fully set out in an original letter from Taylor, Sicard, & Co., of January 
9, 1825, now filed with the proof in the case, as No. 10. After this 
condemnation and sale, the captain, supercargo, and crew, having ex- 
tricated themselves from the gun-boat where they had been confined, 
sailed thence in a boat in pursuit of the Susan to Alvarado, where they 
arrived on the 8th of January, and found their just expectations of 
having the vessel and cargo restored to them wholly frustrated by said 
summary condemnation and sale, and that no effort they could make 
would avail them towards obtaining possession of the property ; and 
it was then and therefore abandoned under protest. 

Long continued, very extraordinary and unwearied efforts have been 
made, not only since the organization of the present honorable Board, 
but for several years prior thereto, to obtain from the Mexican Govern- 
ment and from the United States consul in Mexican ports evidence of 
whatever proceedings were had in the case, if indeed any record thereof 
was ever made, or the papers preserved that Avere found on board the 
vessel ; but Avithout the least effect. And such failure was anticipated 
from tlie beginning, inasmuch as it is seen that, by document No. 16, 
filed among the proof, Mexico had not at that time created any tribu- 
nal competent to decide in a prize cause, nor any depositary for the 
safe-keeping of papers found on board captured vessels, or proceedings 
relating to them ; nor even enacted any law authorizing such capture. 



80 

Under these circumstances, neither capture, condemnation, or sale, 
could be legally made. And without a condemnation made b)' a com- 
petent court, there can be no change of proprietary interest in the prop- 
erty of either vessel or cargo. [See cases referred to in the claim for 
schooner Constitution.] 

This vessel cleared at Baltimore for the Gulf of Mexico, and, it is 
not denied, with the intention of trading with the Castle of San Juan 
de Ulloa, if, when arriving in the Gulf, it was ascertained that it could 
be legally done, and that a better market could be there found than in 
any of the Mexican ports. 

By injury and stress of weather she was obliged to touch at the Ha- 
vana ; but while she remained there, which was but a few days, she 
neither discharged any part of her cargo, or received other articles on 
board. The good faith of her visit to the Havana wff-s not questioned, 
nor made the ground of any charge or proceedings against her. 

While afterwards pursuing her voyage, she was captured in the Gulf 
and at sea by the sloop of war " Anahuac," a public armed Mexican 
vessel ; taken first to the island of Sacrificios, and then to Alvarado, 
and there, as is supposed, condemned for violating the decree of the 
Supreme Government of the 8th October, 1823, which had been held 
as interdicting all trade with the Castle of Ulloa. 

Every effort has been made to get the proceedings of those who con- 
demned or sold the property, but nothing of the kind can be found. It 
is highly probable that no record exists, and that there was no organ- 
ized court of competent jurisdiction to pronounce sentence of any kind 
in such a case. And even if there had been a competent court there, 
it would have been wholly useless to the claimant ; since without notice 
to defend himself, or any opportunity so to do, and his property already 
sold and beyond recovery, it would have been no court to him, and a 
sentence by it, under such circumstances, would have no title to re- 
spect. 

The documents show that the proceedings against the Susan and cargo 
(of whatever character they may have been, or by whomsoever con- 
ducted) took place in January, 1825. General Victoria, who was in- 
stalled as President on the first of that month, declares that there was 
not then, and probably thei-e had not been for some time previously, 
any judicial authority in the Government. He says : 

" The federal judiciary not existing, and the Government being pre- 
' eluded from the intervention which it formerly had in that of the an- 
' cient provinces, its action, in this respect, has been almost null, and 
' will be so until the Supreme Court be instituted by a law designating 
' the number and local relations of the district and circuit judges, and 
' prescribing rules for territorial tribunals and the federal district." 

It is believed that the claim for the schooner Susan and her cargo is 
sustained upon this ground : that they were not regularly condemned 
by a court of competent jurisdiction. 

The unsuccessful efforts to find any record of condemnation warrants 
the assumption of the fact that there is not, and never was, any legal 
decree against the property. Had, however, a decree in due form of 
law by a competent tribunal been produced, there are other sufficient 
grounds for reclamation in this case, and the undersigned will proceed 
to state them to the Board. 



81 

The condemnation (assuming, as it will be assumed, for the sake of 
the argument on other points, that there was one) must have been made> 
under or in pursuance of the decree of the 8th October, 1823, (docu- 
ment No. 11.) That decree will therefore be brought under particular 
consideration. 

As a law of Mexico, it must be regarded onl}' as a municipal law, 
and can only operate within its jurisdiction. Mexico cannot make laws 
to abridge the rights of neutral commerce. This is so obvious a prin- 
ciple, that the undersigned will perhaps need an apology for referring to 
a single authority to sustain it. In the case of " the Appollon," (9 
Wheaton, 370) it is decided — 

" That the municipal laws of a nation do not extend their operation 
' beyond its own territory, except as regards its own citizens." 

This decree of Mexico could not be used in any v/ay to the detriment 
of the owner of the Susan and cargo, who is an American citizen, un- 
less they were at the time of seizure by the Mexican sloop of war within 
the territorial jurisdiction of the Republic of Mexico. It is very cer- 
tain, from the whole tenor of the proofs in this ease, that the vessel was 
not in any of the ports or waters of that Republic, She Avas out at sea. 
The captain, mate, and supercargo, depose, in their protest, that they 
were on their voyage. 

Undoubtedly the captors and the Mexican tribunal (if there was one) 
condemned her upon the same ground that they condemned the schooner 
Constitution and her cargo, (which is also before the Board,) and held 
the Susan and her cargo liable to condemnation for the suspected inten- 
tion of trading with the Castle, which was prohibited by the decree of 
October 8, 1823. 

It appears in several cases that, in the opinion of the Mexican naval 
officers and tribunals, the effect of that decree was, to render liable to 
condemnation a vessel intending to trade with the Castle ; that if there 
was such an intention after the adoption of that decree to carry on such 
trade, all property destined to that place, wherever found, was, in their 
opinion, liable to condemnation. This was giving not only an extra- 
territorial operation to the decree, but it was setting up a principle 
utterly destructive to neutral rights as recognised by the law of na- 
tions — a principle everywhere repudiated and condemned. If the sen- 
tence agtdnst the Susan was upon this principle, it cannot be sustained 
for a moment ; and it must have been on this principle, for no other was 
assigned for the captui'e. 

Another ground, however, for the condemnation may be conjectured, 
and it will therefore be considered, though there is no proof to show 
that there actually was any such ground. 

If the fortress of San Juan de UUoa was in a state of actual block- 
ade, and an attempt was made by the Susan after due notice to run or 
violate the blockade, the vessel and cargo fnight have thereby incurred 
the penalty of forfeiture ; but the intention to trade with blockaded 
places can work no such result. 

It is true the Castle, by the terms of the decree of the Supreme Gov- 
ernment, was declared to be in a state of blockade ; but it is well known 
that a bare decree, or ten thousand decrees, can make no blockade. 
Nothing but an actual competent investing force can make a blockade 
which neutrals are required to respect. 



82 

" By the law of nations, the denomination of a blockaded port is given 
^ only to that where there is, by the disposition of the power which at- 
* tacks, or invests it, with ships stationary or sufficiently near to occa- 
' sion an evident danger in entering. And even Avhere there is such an 
^ actual investment of the port, if any of the blockading ships should 
' not have enforced it, the blockade is so far relaxed. If the blockade 
' has not been duly carried into effect by the ships stationed on the spot 
' for the purpose, it is impossible for a court of prize to enforce it." — 
Wheaton on Captures, 193 — Appendix, 3 ; 3 Roh. Rep., 147. 

By this definition, founded on the best authority, it is established 
that a stationary maritime force — ships stationed sufficiently near to 
make access to the port or place dangerous — is indispensably necessary 
to constitute a blockade. In relation to the Castle, it is not pretended 
that any ship or maritime force was ever stationed near it, or that it 
ever was in a legal sense invested. In some of the cases it is said that 
the land batteries bore upon the Castle ; and one vessel is said to have 
been injured or sunk at or near the Castle, by the guns on shore. It 
would be overruling all judicial authority, and doing violence to the well- 
established doctrines on the subject, to consider a land battery an actual 
investing force in an}'' case. 

In the case of " The Betsy, Murphy, master," (1 Rob., 78, Phila. 
edition,) Sir William Scott says : 

"On a question of blockade, three things must be proved : 1st. The 
' existence of an actual blockade. 2d. The knowledge of the party. 
' 3d. Some act of violation, either hy going in or coming out with a 
' cargo laden after the commencement of the blockade." 

What was proved, or attempted to be proved, in the case of the Su- 
san, by the captors, is not positively known, because the proceedings 
(assuming there were proceedings) haive not been found. It is quite 
certain, however, that two of the three requisite and indispensable facts 
could not have been proved, because it is affirmatively established that 
they did not exist, viz : 

It is very clear, as has been before remarked, that there was no act- 
ual investment of the Castle by a maritime force ; and it is, if possi- 
ble, still more clear that there was no violation, either by the going tO' 
the castle or coming from it, by the Susan. She was not in the vicinity 
of the place which was pretended to be under blockade — she was out at 
sea. The establishment of either of these points shows that the Susan 
and her cargo could not have incurred the liability to condemnation ; 
and whatever may have been the proceedings against her, the claim in 
this case is well made out ;, for the condemnation must have been in 
utter violation of the law of nations. 

But as the case of the schooner Constitution, and some others, de- 
pend upon the pretended blockade of the Castle of Ulloa, and the con- 
demnations for intending — not actually attempting — to trade with it^ 
some further consideration of the facts and the law may be properly^ 
submitted to the Board.. 

It appears from the historical account of the condition of things at 
Vera Cruz and in that vicinity ,. and by the deposition of Juan J. Presas,. 
(No. 14,) that from 1821 to 1825, Spain held the Castle of Ulloa; that 
for most of this period active hostilities between Mexico and Spain had 



83 

ceased, and a free intercourse between tlie Castle and tlie city of Vera 
Cruz was kept up, with only an occasional interruption ; and both the 
history and testimony referred to concur in the important fact, that 
the Castle obtained its necessary supplies from the city of Vera Cruz, 
from time to time, but a short time prior to the period at which this 
claim arose. 

The introduction to the articles of the decree of October 8, 1823, 
under which the condemnation of the Susan, Constitution, and other 
American vessels, was pronounced, shows, that there was a quasi peace 
during most of this period. The following is an extract from that in- 
troduction: (Document, No. 11.) 

" That so far, therefore, the Mexican nation and its Government, 
putting into practice the principles of lenity and prudence which 
characterize Americans, has permitted the existence of friendly rela- 
tions with the subjects of Spain, the free trade of her goods and man- 
ufactures, the exportation of national goods and money, and the free 
entry of her merchant vessels into our ports. That notwithstanding 
this generous conduct, and forgetting her true interests, the same Span- 
ish nation has not taken one step to unfold the sincerity of her in- 
tentions as to peace, but on the contrary, without losing sight of her 
ancient ideas of dominion, retains her forces in a small point of the 
continent of Mexico, where she boldly attempts to fasten upon the sons 
of this soil the ignominious yoke of servitude which so gloriously they 
have thrown off," &c. It then goes on to charge the Governor of the 
Castle with having broken his word, " passed to the authorities of Vera 
Cruz," not to fire upon the town without previous notice, and of having 
opened a fire on it, which w'as returned from the batteries on land. 

Upon this provocation, the decree of October 8, 1823, w-as issued ; 
but the proofs show that this state of active hostilities did not last long, 
and was again succeeded by a state of quasi peace. It had been so far 
disregarded, that it became necessary in December, 1824, only five days 
before the Susan was captured, to issue another decree at Mexico, to 
revive and continue in force the decree of the preceding October. (See 
document No. 12.) This supplemental decree reached Vera Cruz on 
the very day on which the Susan was captured at sea. This fact proves 
that, when the Susan left the United States, the blockade, if it had in 
fact existed in any other shape than a paper blockade, had been relaxed. 
And if relaxed, or not carried into effect by vessels stationed on the 
spot for the purpose, "it is impossible for a court of prize to enforce 
it." — Wheaton on Captures, 193. 

If the second decree revived the blockade, then the question of notice 
arises. If not properly notified, a vessel attempting to trade with an 
actually blockaded port is not implicated in any penalties. If the rules 
of law in regard to notice are considered, it will be found that a proper 
notification was not given of either decree. And were it therefore pos- 
sible to adopt the monstrous doctrine that a paper blockade may be en- 
forced against neutrals — a doctrine which certainly can never have any 
countenance from the Board — yet efiect was not given to the Mexican 
decree by a due notification. The law on this point is thus stated, by 
Wheaton and by Lord Stowell : 

" As a proclamation or a general public notification is not of itself 
3 



34 

' sufficient to constitute a legal blockade, so neither can the existence 
' of such a blockade be imputed to the party, merely in consequence of 
' such a proclamation or notification. Not only must an actual block- 
' ade exist, but a knowledge of it must be brought home to the party, 
' in order to show that it has been violated." — Wheaton on Captures, 
198; 3 Rob. Rep., 147; 1 Rob., Rgp., 93. 

No proclamation, no public notification, is shown. One of the wit- 
nesses who was at Vera Cruz at the time says, all the notice that he 
ever knew of the decree of the 8th of October, 1823, was the placard- 
ing of it in that city. No due notification was shown — no turning off 
neutral vessels which had no notice — no other use seems to have been 
made of the decree, but that of attempting to justify plunder upon neu- 
tral commerce. 

But even where there has been actual notice, but the party has 
grounds to conjecture that the blockade has ceased, the vessel is not in 
delicto for attempting to trade with the blockaded port. (See the case 
of the " Juffrow Maria, Shroeder," 3 Robinson, 122.) 

Neither one, therefore, of the three things indispensable to a legal con- 
demnation, is shown in this case ; and the capture and condemnation of 
the Susan and her cargo was a manifest wrong. 

In the first place, there was no actual blockade. Even if there had 
been one, the facts show it must have been relaxed at the time the Susan 
was on her voyage and captured. 

In the second place, no knowledge of a blockade was brought home to 
the party. 

And in the third place, no act was done by the Susan to run or vio- 
late the blockade, even if it could be assumed that one in fact existed. 

The general doctrine is, that a party ignorant of a blockade does not 
violate it and incur any penalty by entering, or attempting to enter, a 
blockaded port, unless first warned off. 

" A vessel sailing ignorantly for a blockaded port is not liable to 
' condemnation under the law of nations." — 5 Cranch, 335. 

The current recent intelligence from Mexico, at the time the Susan 
sailed from New Orleans, [Baltimore,] of the tranquil state of the coun- 
try, Spanish Commissioners to treat of peace and commerce having 
been shortly before announced as having arrived at Mexico, might well 
justify our merchants in assuming their shipments to Mexican ports, 
and even to the Castle, as perfectly safe ; or that, if among the very 
frequent changes and revolutions that theretofore occurred, such should 
again and suddenly break out, some notice or warning off should neces- 
sarily be given to our vessels. At all events, they sent their shipments 
there in ignorance of the existing state of things ; and that ignorance it 
is seen is sufficient to save their property from condemnation under the 
law of nations, which is the only law that reaches this case, being a 
capture at sea ; and it will not be overlooked that the decree in question 
did not, nor did any other decree or law of Mexico, authorize the cap- 
ture of an American vessel at sea. 

There are cases to be found, where vessels have been condemned for 
sailing to a blockaded port, before they reached it and attempted to 
enter ; but such cases are dissimilar in all their circumstances to this. 
There is, as Sir William Scott says, in the case of the " Neptunus," 



35 

(1 Robinson, 144,) two sorts of blockade. One by the simple fact only ; 
the other by a notification accompanied by the fact. 

In this case, it appears very elea,rly, there was no a<3tual blockade, 
because there was no investment of the Castle by a stationary maritime 
force. If, however, there had been such an investment, then it would 
have been a simple blockade, and not a notification with the fact of 
actual blockade. It is important to observe this distinction Avitli reference 
to the question of knowledge. 

In the case of a simple blockade, there must be positive knowledge 
of the fact of the actual investment, and an attempt to enter the block- 
aded port after that knowledge, in order to bring a neutral vessel and 
cargo under the penalty of condemnation. 

The other sort of blockade, mentioned by Sir William Scott, is the 
actual investment of the port, or place, with notification of the fact. 

What is meant by a notification, is not the mere promulgation of the 
actually existing blockade. Such is not the notification which the law 
requires, in order to attach penalties. 

If Mexico had stationed ships about the Castle of Ulloa, and had 
given formal notice to the Government of the United States that the 
Castle was in a state of efiective blockade, and that neutral commerce 
with it was not permitted, the law could presume, after sufficient time 
had elapsed, that our merchants had received information of the exist- 
ence of the blockade from their Government ; and in such a case, the 
plea of ignorance would be unavailing. 

Should they afterwards fit out vessels to trade with the Castle, (the 
blockade being all the while rigorously continued,) these vessels, with their 
cargoes, would in that case be in delicto while on the voyage, without an 
actual attempt to enter the blockaded place ; and, although taken at sea, 
might be condemned for violating the blockade. This is properly called 
a " hard doctrine.'^ So indeed it is ; and the courts are alwaj^s ready 
to relax it on slight occasions. 

If the blockading force is temporarily withdrawn, not from necessi- 
ty by the violence of storms — if a part of it is withdrawn, leaving an 
inadequate one to enforce the blockade — if any neutral vessel enters by 
permission, or there is want of vigilance in enforcing the blockade — it 
is, from either of these causes, held to be relaxed ; and prize courts re- 
fuse to enforce it by sentence of condemnation. 

Hence it is seen that many vessels captured on voyages to blockaded 
ports have been released, and their voyage declared lawful, because 
they had reason to conjecture that the blockade had ceased, or would be 
at an end, before they could arrive at the destined place. 

The blockade of the Castle, paper blockade as it was, was not with 
notification ; no notice of it was given by the Government of Mexico 
to the Governments of neutral nations. 

It was not even a simple blockade ; because there was no investing 
force, an indispensable requisite to a blockade. If there had been a 
blockading force, it would have been only a simple blockade. It was 
not a blockade with notification, for no notice was given to the United 
States, that the Castle was in a state of actual blockade. 

It is proper to remark here, that notification to the Government of one 
neutral nation does not afiect or implicate other neutral nations ; each 
neutral must have notification. 



S6 

Taxing the imagination to the utmost, no sufficient ground for a con- 
demnation of the Susan and her cargo can be found. The decrees of 
Mexico viewed as municipal laAvs could have no efiect upon this vessel, 
because she was not when captured within the jurisdiction of that coun- 
try. Furthermore, as municipal laws they were merely prohibitory, 
without any penalty, and evidently aimed against Spanish property, 
productions, manufactures, and trade. 

In any and every point of view in which they can be regarded, they 
were ineffective as establishing a blockade of the Castle of Ulloa. The 
decree of October 8, 1823, in express terms, placed the Castle solely 
under the inadmissible and impracticable investment of the batteries of 
Vera Cruz ; and it need hardly be said, that these batteries were not 
authorized to make captures at sea — nor did any Mexican law or decree 
authorize such captures. 

The claim of damages for the Susan and cargo, to the full amount of 
the loss, is considered as fully established — a statement whereof is set 
forth on the next following page. 

All which is respectfully submitted. 

JAMES H. CAUSTEN. 



BoABD OF Commissioners Claims against Mexico, 

February 3, 1851. 

SCHOONER SUSAN— JAMES W, ZACHARIE, CLAIMANT. 

The schooner Susan, an American registered vessel, owned by the 
claimant, sailed from Baltimore for the Gulf of Mexico on the 10th of 
November, 1824. On the 20th of December following she was cap- 
tured off the Mexican coast, and near the Castle of San Juan de Ulloa, 
by the Mexican national schooner Anahuac. The claimant alleges in 
his memorial that the schooner ^'was carried into Sacrificios, and thence 
' to Alvarado, where, as is understood, both the vessel and cargo were 
' condemned." 

He avers a total loss of both vessel and cargo, and claims indemnity 
from the Government of Mexico. 

In order to determine whether the claim preferred is valid, it becomes 
necessary to examine the cause of the capture and subsequent condem- 
nation. 

The claimant alleges that the schooner was captured "on the allega- 
' tion of intention to trade with the Castle of San Juan de Ulloa, then 
' in possession of the Spaniards." 

An original letter from Taylor, Sicard, & Co., dated Vera Cruz, 9th 
January, 1825, addressed to the claimant, and filed by him as a part 
of his evidence in this case, stated : 

"On the 3d instant the schooner Susan, Captain Newman, was 
' brought in here as a prize, charged with the intention of being bound 
' to the Castle." 

The United States Consul at Vera Cruz, in a letter to the State De- 
• partment dated January 5, 1825, said: 

"The day before yesterday an American schooner, the Susan, Cap- 



37 

* tain Newman, was sent in hei*e as a prize, having been captured off 

* the Castle, with provisions, by one of the Mexican vessels of war." 

These statements constitute all the evidence before the Board which 
explain the cause of the capture. The subsequent condemnation and 
sale of the vessel and cargo by the Mexican authorities is admitted by 
the claimant;, and is also stated in letters which he has filed as a portion 
of his evidence. 

No record of the proceedings and judgment of the prize court in Mex- 
ico has been presented to the Board ; we are, therefore, left to infer the 
grounds of condemnation from the general statements of the cause of 
the capture above referred to. 

The claimant's counsel urges, that "the claim for the schooner Susan 
'' and her cargo is sustained upon the ground that they were not regu- 
' larly condemned by a court of competent jurisdiction." 

The Board cannot presume this, in the absence of testimony to prove 
it. It is a material fact, the burden of proving Avhich lies upon the 
claimant. It being admitted that the vessel and cargo were condemned 
by a prize court in Mexico, the Board must presume that it was a court 
of competent jurisdiction, and that its proceedings were regular. If 
the record of the court was before us, it might disprove both of these 
presumptions, and sustain the ground assumed by the claimant. 

The fact alleged by the claimant, that he has been unable to procure 
a copy of the record, does not change the presumption. Whether the 
absence of the testimony is caused by the unwillingness of the Mexican 
authorities to furnish it, or by the laches of the claimant, the duty of 
the Board to regard the jurisdiction of the court as sufiicient, and its 
proceedings regular, until the contrary is shown, remains unchanged. 

tt remains, then, to inquire whether the cause of the capture, and the 
circumstances under which it was made, as they are to be deduced from 
all the evidence in the case, would, under the law of nations, haVe justi- 
fied a. condemnation before a court of competent jurisdictioUj and whose 
proceedings were regular. 

At the time the capture was made, Mexico and Spain were at war. 
The Spanish forces, after having been expelled from every other portion 
of the Mexican territory, at that time held possession of the Castle of 
San Juan de Ulloa. The United States, as a neutral nation, could 
claim for its citizens only the rights which, by the laws of nations, neu- 
trals hold in relation to belligerents. The Spanish forces in the Castle 
could only obtain their supplies from the land by the permission of the 
Mexicans, who had possession of the city of Vera Cruz, and of all the 
country around. 

it was an important object to Mexico to cut off the supplies of her 
enemies in the Castle, and thus compel them to surrender. She had an 
Undoubted right, by the law of nations, to besiege the Castle as well by 
sea as by land, and to treat as an enemy whoever might attempt to en- 
ter it, or carry anything to the besieged. This doctrine is laid down 
by Vattel, B. 3, § 117, as follows: 

*^ All commerce is entirely prohibited with a besieged town. If I 
' la,y siege to a tOAvn, or only form the blockade, I have a right to hinder 
' any one from entering, and to treat as an enemy whoever attempts to 

* enter the place or cai'ry anything to the besieged, without my leave." 



g8 

Mexico asserted this right, and by a decree of 8th October, 182o, 
*' the fortress of San Juan de Ulloa is (was) declared to be in a state of 
blockade," and all communication with the garrison and vicinity was 
declared to be absolutely cut oft". 

On the 20th of December, 1824, another decree was published, by 
which the strict blockade of the Castle was continued, and the provis- 
ions of the previous decree were declared to be in full force. 

More than a jenr had elapsed from the publication of the first decree, 
■when the Susan was captured "' ofi" the Castle." The evidence filed by 
the claimant proves, beyond doubt, that she sailed from the United 
States for the purpose of disposing of her cargo at the Castle. Her 
manifest specified her destination to be the "Gulf of Mexico," and not 
any particular port. The protest of the master, made before the United 
States Consul immediatel}^ after the capture, states that the vessel was 
" bound on a voyage from Baltimore to the Castle of San Juan de Ul- 
loa." The same fact was again asserted by the master, in an a3ida\'it 
which he made at New Orleans in March, 1825. 

The claimant's counsel insists that the capture of the Susan was il- 
legal, because, as he alleges, she was captured "out at sea," and not 
in the vicinity of the Castle. This assumption is not sustained by the 
testimony. Not one of the papers filed in the case contains such an 
allegation. The protest of the master does not specify the distance of 
the vessel from the Castle when she was captured. If the vessel had 
been captured " out at sea," it is hardly to be presumed that the state- 
ment of so important a fact would have been omitted in the master's 
protest. But besides this strong negative testimony, the assumption is 
disproved by the letter of the Consul above referred to, in wdiich he 
says the Susan was " caphired off the Castle, ivith provisions. ^^ 

There can, then, be no reasonable doubt that the Susan sailed from 
Baltimore with a cargo of provisions for the Castle of San Juan de Ulloa^ 
which was then in a state of blockade, and that she was captured by a 
Mexican vessel of war while ofi" the Castle, and attempting to violate 
the blockade. 

It is urged that, notwithstanding the decrees of blockade before re- 
ferred to, there was no actual blockade of the Castle, because there 
was not kept in the vicinity a sufficient maritime force to enforce it. 

It is true the law of nations requires a blockading power to keep a 
force sufficiently near the blockaded port, " to occasion an evident dan- 
ger in entering." The evidence in this case does not disclose the ex- 
tent of the maritime force which Mexico kept in the vicinity of the 
Castle. The Board has no right to presume, in the absence of testi- 
mony, that a sufficient force to sustain the blockade was not kept there- 
The claimant, who seeks to invalidate the decision of the prize court in 
Mexico upon this ground, should prove it. This he has wholly failed 
to do. 

That the force which Mexico kept there was sufficient " to occasion 
an evident danger" to the Susan in entering, is sufficiently proved by 
the fact of her capture. It is also in evidence before the Board, that 
about that time several captures of neutral vessels were made, on the 
allegation that they were attempting to violate the blockade. So far as 
the evidence upon this point goes, there is a decided preponderance in 



3D 

itbvov of the position that Mexico kept as large a maritime force in the 
vicinity of the Castle as was necessary, under the law of nations, to give 
eflfect to the blockade. 

Besides, it is in evidence before the Board, that the Mexican land bat- 
teries at Vera Cruz commanded the approach to the Castle, and that 
one vessel was sunk by them while discharging her cargo at the Castle. 
Although the investment of a besieged post or fortress by a land force 
may not be technically a blockade, there can be no doubt of the princi- 
ple that the besieging force has the same right, under the law of na- 
tions, to cut off supplies and to prohibit a trade with neutrals, "^hich is 
possessed by a blockading squadron. The object in both cases is the 
same — to force a surrender of the enemy by depriving him of the facili- 
ties to prolong the contest which a trade with neutrals might nfibrd him ; 
and the right to capture the propert}^ of neutrals trading with the enemy, 
under such circumstances, is undoubted in either case; 

It is also insisted that the capture of the Susan was illegal, because 
she was not warned off. 

The claimant has filed among his papers an affidavit made in New 
Orleans, in March, 1825, by the master and supercargo of the Susan, 
in which they state, " that on their passage from Baltimore to the 
" Castle of San Juan de Ulloa, said vessel was not boarded or ordered 
* oJGT by any Mexican cruiser, previous to being captured by the Ana- 
' huac." 

It is not essential, to give validity to the capture of a neutral vessel 
entering a blockaded port, that she should be warned off. The fact of 
her being warned off is but an evidence of notice of the blockade, and 
the notice being proved alundi is equally effective. The facts devel- 
oped by the evidence in this case are sufficient to justify the presump- 
tion that the fact of the blockade was well known both to the owner and 
the master. The blockade had then been proclaimed more than a year. 
The proximity of New Orleans (where the owner resided) to Vera Cruz, 
the frequent communication between the two places, and the fact that 
the owner was extensively engaged in trade with that port, forbid the 
conclusion that he was ignorant of the blockade. He does not aver a 
want of notice in his memorial, nor is it shown by any of the testimony. 
The affidavit of the master and supercargo, before referred to, does not 
allege that they were ignorant of the blockade. 

The English courts of admiralty have decided that sailing for a 
blockaded port, knowing it to be blockaded, is a breach of the blockade 
from the departure of the vessel, and that she may be legally captured 
wherever found. 

From a careful examination of all the evidence adduced by the claim- 
ant, the Board is satisfied that nothing is proved which would justify a 
decision that the judgment of the prize court of Mexico was in violation 
of the law of nations. 

It is therefore decided that the claim preferred on account of the 
capture and condemnation of the schooner Susan and cargo, is not a 
valid claim against the Republic of Mexico, and it is therefore not 
allowed. 

GEORGE EVANS, ) 

CALEB B. SMITH, \ Commissioners. 

ROBERT T. PAINE, > 



40 

REMARKS UPON THE COMMISSIONERS' OPINION IN 
THE CASE OF THE SCHOONER SUSAN. 

Having been favored by the Board with an opportunity to examine 
their opinion in the case of the Susan, I beg leave^ in the most respect- 
ful manner, to suggest some points in regard to which I hope to satisfy 
the Board there is some misapprehension on their part as to facts, and 
the application of the law to them. I think the Board have gone too 
far in assuming, as they do, that the claimant admits the Susan ^^ivus 
condemned by a prize court in Mexico.^^ The words, "Ay a prize 
court in Mexico,^^ are not in tlie memorial, or any of the papers in the 
case, except the opinion of the Board. They have regarded the state- 
ment of a rumor in the memorial as the averment of a fact ; and havcj 
by mistake, added a clause to it, which alone renders the significance 
they have given to it plausible. 

There is certainly no such admission in the papers before the Board.- 
The claimant states, frankly and truly, that the vessel and cargo were 
first taken to Sacrificios, and thence to Alvarado, " where," as is un-- 
derstood, " both the vessel and cargo ivere condemned.^' He evidently 
is not averring a fact within his own knowledge, but only speaking of 
a rumor, a report, which came probably from the Mexicans, and was 
put forth as a pretext for their wrong. 

Subsequently to the presentation of the memorial on which the above- 
quoted expression is used, the claimant, as is well known to the Board^ 
has diligently sought for a copy of the proceedings in the proper place 
for them, and no trace whatever of any proceedings has been found.* 

In the argument filed by the undersigned in this case, he therefore 
denies — as under the circumstances he has a right to deny — that there 
was any such court. So far as he could establish a negative, which 
cannot be legally required of him, he has done so. 

On the most thorough search, no record of the proceedings can be 
found. And he moreover strengthens the inference that there was no 
condemnation by a court, by the declaration of President Victoria^ in 
his inaugural address to the first Constitutional Congress of Mexico", on 
the first of January, 1825, (only ten days after the vessel was captured, 
and eight days before the vessel and cargo were sold,) that there were 
710 federal courts in Mexico, viz: 



* The Board will well recolleet that the trial of this case, and several others of 
like character, hare been deferred since May of last year, for want of the proceed- 
ings only, which were formally required from the Mexican Government by my re- 
quisition, which was presented to the Board, received its ofificial sanction, sent by 
it to the Department of State oiBcially, and in due form urged upon the Mexican 
Government by said Department and our Minister at Mexico. That requisition 
has been again and again pressed upon the Department, and I have obtained fur- 
ther and more pointed instructions to make it effectual ; and 1 have also pressed 
our Minister in Mexico, directly and most earnestly ; but all these efforts have 
been unavailing. And the case is now submitted to the Board after said fruitless 
search, which, under the extraordinary circumstances of the case, entitle it to a 
liberal construction. What has been done in the manner indicated is tantamount 
to a thorough search ; but this was not much relied on ; the State Department was 
further invoked to instruct the Consuls to add their efforts also; and the claimant 
also solicited the aid of the Consuls, and his correspOHdenta on the spot, to pursue 
the search , but nothing has yet been found. 



41 

" The federal judiciary Hot existing^ and the Governinelit being pfe^ 
' eluded from the intervention which it formerly had in that of the an- 
' cient provinces, its action in this respect has been almost null, and 
' will be so until the supreme court be instituted, by a law designating 

* the number and local relations of the district and circuit judges, and 
' prescribing rules for territorial tribunals and the federal district." 

Before the preofs were collected, or rather that part of the proofs 
ivhich it was not his duty in the regular course of proceedings to pre- 
sent, the claimant states^ in his memorial, not what the Board has mis- 
takingly imputed to him, but only that it Avas understood the vessel and 
cargo were both condemned. He is speaking of the account given of 
the disposition they had made of his property, by his commercial agents^ 
and he uses their language. 

After the strong negative proof to the contrary, such an expression 
as he made in his memorial, or such a one as the Board impute to himj 
ought not to be set up against him, as an admission that there was in 
fact an actual condemnation, and then construct upon that the pre- 
sumption that it was a court with competent jurisdiction, and its pro- 
ceedings were regular. If the memorial had contained what the Boardj 
under a mistake, say it did contain, it would not, in my opinion, justify 
the inference or presumption that the court had competent jurisdiction 
and the proceedings were regular. But the great error of the Board, 
on this point under consideration^ is an error of fact* They say, '' It 
' being admitted that the vessel and cargo were condemned hy a prize 
' court in. Mexico^ the Board must presume that it was a court of com- 

* petent jurisdiction," &c. If they look at the memorial which is said 
to contain " this admission^'''' they will not find one word in relation to 
*' a prize court '^ in it. 

Had the admission been what the Board understood it to be — if the 
claimant, as a matter of fact, and not merely as a thing understood^ 
had stated that his vessel and cargo were condemned " iy a prize court 
in Mexico^'' — there would be less ground of objection to the inference 
which they drew, of a court of competent jurisdiction, and regularity 
in the proceedings ; but it is due to the Board to presume that they 
will not, from the mere statement of the claimant that the vessel and 
cargo, as is understood.^ were both condemned, without saying one word 
as to the mode of condemnation, where, or by whom it was done — I 
repeat, that they will not presume from such a loose expression, evi- 
dently referring to hearsay — 

1st. That there was a court ; 

2d. That it had competent jurisdiction ; and 

3d. That the proceedings were regular. 

By inadvertence, undoubtedly^ the Board have imputed to the claim- 
ant an admission he never made j and, by the inference drawn from it^ 
an important admission, destructive of his claim. 

The correction of this error in fact must, as I conceive^ change the 
result of the Board's decision \ it must take away the whole ground of 
defence to the claim, viz : that there was a regular condemnation of the 
property by a court of competent jurisdiction, conducting its proceed- 
ings in a regular manner ; for, without a condemnation by a competent 
court in a regular way, Mexico could get no title to the property she 
took from the claimant. 



The Board are respectfully requested to recollect that it Was no paT 
of the claimant's duty to negative the fact that there was such a court, 
and that it proceeded to a sentence of condemnation. This is matter 
to be shown affirmatively against the claimant, and cannot be required 
from the party asserting the claim. 

" Whoever sets up a title to property;, under a decree of condemna- 
* tion, is bound to show that the court had jurisdiction of the cause, 
' and that the decree of the court has been rightly pronounced, upon 
' the application of parties competent to ask it." — La JYereyda, 8 
Wheaton, 108. 

The Board has laid down an exactly reversed position in relation to 
the jurisdiction of the court; for they say the burden of proving the 
court had not jurisdiction lies on the claimant in this case. 

Mexico could only resist the claim in this case by showing a title to 
the Susan and cargo, under a decree of condemnation by a court of com- 
petent jurisdiction. Had she been in fact a party before the Board, 
she would have been obliged to show such a decree by such a court, in 
order to resist the claim. The United States occupy her position, and 
to a considerable extent are charged with her duties. 

To require the claimant not only to prove his claim, but also to repel 
bare presumptions, by proving negatives, is exacting of him impossi- 
bilities. If the Board, under the peculiar [circumstances] of the cases, 
require the claimants to disprove negatively, in support of their claims, 
what ought to be proved affirmatively in resistance to them, they may 
do great injustice to fair claims by going too far in this direction ; as 
it is believed they have in this case. 

Let it be supposed that this claim had been laid before the mixed 
Board, under the convention of 1839 : could the Mexican members of 
it have been sustained in the position which this Board has taken 1 If 
it had appeared there, as it does here, that the claimant had stated that 
he had heard, or it was understood, the vessel and cargo were both con- 
demned, would it not have been strange, indeed, for them to urge, and 
still more strange in the Board to acquiesce in the position, that the 
claimant had admitted a condemnation, and consequently the Board 
must presume that it Avas pronounced by a court, and that the court 
had competent jurisdiction ; that from the bare fact that the claimant 
had said that he had heard, or understood — not pretending the fact was 
in his own knowledge — that the property was condemned, the actual 
condemnation by a duly authorized court should be inferred from these 
facts, were sufficiently established, and no decree, no record, no pro- 
ceedings need be produced. On the contrary, would not Mexico or her 
commissioners have been required to show, ought they not to have 
shown, in order to defeat the claim — 

That there was a decree of condemnation ; 
That it was pronounced by a court of competent jurisdiction; 



1st 
2d. 
and 
3d. 



That the proceedings were in due form of law ? 
They could not have been allowed the extravagant presumption that, 
because the claimant had stated a rumored condemnation, there was a 
court which condemned ; that it had a competent jurisdiction, and had 
conducted its proceedings in a regular manner. 



43 

Aiid, accoi'ding to the decision of the Supreme Court, in the case of 
" La JYereyda,^^ 8 Wheaton, 108, before cited, she must show a title 
tinder a decree of a court of competent jurisdiction ; and even more — it 
requires that it should appear that the court acted in the matter on the 
application of a proper party* So, it is conceived, the case would have 
stood before the mixed Board. Mexico must have allowed the claim, 
Of shown a decree of condemnation for good cause by a court of com- 
petent jurisdiction. 

Is the case altered in its principles'? Are the rules of law there 
applicable to it not only modified, but reversed, by a change in the mode 
of constituting or composing the tribunal 1 Such cannot be the case. 

If the claimant shows the fact that his property has been taken from 
him, he has established a right to indemnity, unless it is shown on the 
part of the captors that thej had a right to take it ; and that right 
can no otherwise be shown than by a decree of condemnation, such as 
has been described. 

The claimant thinks, from the pains taken to find a record, after pre- 
senting the memorial, that he is warranted in saying that what he then 
understood to be true was not true ; that, in fact, the vessel and cargo 
were never condemned ; and that the hearsay report which he men- 
tioned in his memorial should not be taken by the Board as an admis- 
sion of the fact of a condemnation by any court, regular or irregular, 
or by an association of depredators, inasmuch as no proof, after diligent 
inquiry, can be found to establish it, and enough appears to make it 
very questionable. 

The letters referred to, in which a condemnation is spoken of, do not 
weaken the position here mentioned. None of the writers pretend to 
have any knowledge of any judicial proceedings, or to speak of any- 
things but vague reports, or the pretence set up by the Mexicans for 
taking the claimant's property. All inferences fairly derivable from 
them are rebutted by the fact that no proceedings in the case can be 
found. 

The Commissioners seem to impute the non-production of the record 
to one of two causes : " the unwillingness of the Mexican authorities to 
produce it," or " the laches of the claimant." But are there facts or 
circumstances to warrant the assumption of either? The first is a 
presumption unsupported by the proofs ; for there is nothing to show 
that Mexico would not willingly have produced the record, if one could 
have been found. A regard to her own character would incline her to 
do so. The second is rather in opposition to the facts ; if the record 
had been evidence in support of the claim, the claimant could not have 
done more than he has done to procure it. 

The Board, it is respectfully urged, has erred, not only in holding 
what was said in the memorial to be admission that there was a con- 
demnation by a court of competent authority, but they also err in re- 
versing the rule of law, by holding that the burden of proving the court 
had not competent jurisdiction is thrown upon the claimant. 

The doctrine on this subject, as is clearly shown by the case referred 
to in Wheaton's Reports, vol. 8,108, is directly opposite to that laid 
down by the Board. 

In strict law, it ought to be shown against the claimant that his 



44 



li 



iproperty Mas taken from liim, not only by a decree of a court, but a 
court of competent jurisdiction. 

In making the efforts the claimant has to find and get the proceed- 
ings, (which he was not bound to do,) he has done enough to destroy 
the presumption that there was either a court or a condemnation. This 
has been done, not as a duty, but a Avork of supererogation. 

The presumption of condemnation by a competent court, or by any 
court) is strenuously resisted ; but it is proposed to go a step further — 
perhaps an unnecessary step — and examine the grounds of the supposed 
decree in this case. 

It is believed that the Board have been misled by a misapprehension 
of the relations Avhich existed between Mexico and Spain. In the case 
of the schooner Scott, which has not yet probably received the partic- 
ular attention of the Board, the actual condition of things between the 
two countries at the time that vessel and the Susan were seized has 
been touched on, but not sufficiently presented. There was not a state 
of war, but of quasi peace, betAveen the two countries, during nearl}*^ the 
whole four years the Spanish forces held the Castle^ after having been 
expelled from the rest of Mexico. This expulsion was in 1821. During 
that year, and up to the 8th of October, 1823, a state of actual peace 
existed, though there was no treaty of amit}'. The preface to the 
decree of that date (October 8, 1828) shows conclusively a state of 
peace. It expressly admits that Spanish vessels had free entrance into 
Mexican ports, (and that many of them were then there,) particularly 
into the principal port of Vera Cruz ; they brought in Spanish products^ 
and took away Spanish and Mexican property, specie^ &c. This was 
not a state of war. 

If they did not act towards each other as belligerents, they could 
not require neutrals to regard them as belligerents, and concede to them 
belligerent rights. 

It is true the decree of October 8, 1823, was a warlike measure. It 
temporarily interrupted the previously existing relations of peace — the 
free intercourse and trade between them ; but the interruption was of 
short continuance. There is abundant testimony, in the cases touching 
Upon the pretended blockade of the Castle, to show that soon after the 
issuing of that decree a peaceful and free intercourse Avas again estab- 
lished — the garrison was supplied from the shore, and intercourse by 
neutrals Avas permitted. This Avas the state of things as generally 
knoAvn, and of course knOAvn at Baltimore^ when the Susan sailed from 
that port. While she was on her voyage, some circumstances of irri- 
tation caused a revival of the order of October 8, 1823. The extract 
from the American Consul's letter to our Secretary of State, of the 5th 
of January, 1825, (No. 13,) declares as follows : " Hostilities have 
again commenced between San Juan de Ulloa and Vera Cruz,'^ ^c, 
This authorizes the inference that previous to that time, Avhich was a 
month after the Susan sailed from Baltimore, and fourteen days after 
she was captured, there was not a state of hostilities. Under the ap- 
pearance of peaceful relations) at most under the state of intermitted 
hostilities, American- merchants, being neutrals, fitted out their vessels 
to trade with the Castle as Avell as with Vera Cruz ; they had an unques- 
tionable right to do so, and it AVas a gross fraud upon them — a violation 



45 

of their neutral rights — to Bet up the pretence that they intended to 
pursue an illicit trade — a trade in contravention of belligerent rights ; 
and upon that pretext to involve their property in the penalties of con- 
demnation. 

The following extract from a deposition of Juan J. Presas, then a 
highly respectable merchant of Vera Cruz, and afterwards a naturalized 
citizen of the United States, shows that the relations between the Cas- 
tle, while held by the Spaniards, and Vera Cruz, were not belligerent, 
but peaceful : 

" During the years 1821, 1822, 1823, 1824, and 1825, he was re- 
' siding on the coast of Mexico, near Vera Cruz, and was well acquaint- 
' ed with the commerce of that port ; and that during the first four 
' years the city of Vera Cruz was occupied by the Mexican troops, while 
' the Castle of San Juan de Ulloa was held by the troops of the King 
' of Spain— that, notwithstanding that all Spaniards had been expelled 
' from the interior of Mexico, many were permitted to remain on the 
' coast, and the Castle of San Juan de Ulloa was permitted to draw^ 
' her regular supplies of provisions from the city of Vera Cruz during 
' the years 1821, 1822, 1823, and 1824 ; but some time in the year 
' 1-824 a change of commanders in the city of Vera Cruz took place, and 
' the Castle was prevented from drawing her usual supplies, and de- 
' clared in a state of siege and blockade, under a decree which had issued 
' by the Supreme Government in the year 1822, which had not previ- 
' ously been enforced ; and a new decree was published, directing that 
' foreign nations should be notified — never heard of any notice having 
' been given to foreigners, other than a placard posted up at the corner 
' of the streets of Vera Cruz, and a notification given to the commander 
' of the Castle by the commander of the city — heard of several captures 
' having been made by a small armed schooner under the Mexican 
i flag."— &e Doc. JYo. 14. 

This testimony proves that the decree of October 8, 1823, was not 
enforced, but remained a dead letter ; that, until the issuing of the 
second decree, all about Vera Cruz bore the relations of peace. 

The Board have fallen into a great error of fact by assuming that, 
after the first decree, there was in fact a continuous state of active 
hostilities, and that the Castle after that date was at all times a block- 
aded and besieged place — that this fact was notorious to all the world — 
and that the Susan was i7i delicto, even for fitting out at Baltimore, 
and entering on her voyage to the Castle. I think I am not mistaken 
that this is their position, for, without it can be sustained, their de- 
cision is unsustainable. 

The Board say that " the facts developed by the evidence in this case 
' are sufiicient to justify the presumption that the fact of the blockade 
' was well known to the OAvner and the master." 

A very different view of the facts is taken by tlie counsel ; the care- 
ful examination of them convinces him that they repel such a presump- 
tion. They show there was no actual blockade, no serious interrup- 
tion to commerce for most of the time, nor an exterior of a hostile state 
between Spain and Mexico. He thinks it is made quite manifest by 
the proofs that there was not a blockade at the time the Susan sailed ; 
in fact, no hostilities, but that a quasi peace existed. 



46 

To rebut the presumption of tlie Commissioners above stated, I ask 
their attention to the aforegoing quotation from Presas's deposition, and 
also to the following extract from the original letter of the captain of 
the Scott, filed in the case of that schooner, as document No. 12. The 
Scott, it Vv'ill be recollected, arrived at the Castle on the 4th of January, 
1825. She sailed from the United States after the Susan. Public 
opinion at Baltimore was undoubtedly the same when the Susan sailed 
as it Avas at New Orleans when the Scott left that place. The captain 
of the Scott says : 

" When I sailed from New Orleans, I knew not that the Castle was 
' in a state of blockade. I was not boarded during the passage by any 
* Mexican cruiser to advise me of the existence thereof, if any such does 
' exist ; it is, besides, a notorious fact, that until the present period 
^ American vessels have had free communication with the Castle, and 
' the trade has been always considered legal ; consequently, I cannot 
' conceive why my vessel has been treated by the Government of Vera 
^ Cruz worse than an enemy, for the forts of that town did not fire upon 
' the Castle, a declared foe," &c. 

This is a cotemporary document, written on January 6, 1825. This 
letter reflects the public opinion of the state of things between the Cas- 
tle and Vera Cruz, as they were believed at New Orleans when the 
Scott sailed, and undoubtedly as they were understood at Baltimore 
when the Susan left that port. 

I am fully convinced that, if the Commissioners will take the trouble 
to look at the proofs in the cases of the Susan and the Scott, they will 
be satisfied that hostilities were intermitted, if they before existed, until 
the issuing of the second decree ; and even shortly after that was issued 
they were again intermitted, and that neutral merchants did believe — 
and the deportment of the belligerents authorized them to believe — -that 
commerce with both Vera Cruz and the Castle was thrown open to 
them ; and that, in fitting out their vessels to either of those places, 
they were pursuing a permitted commerce and respecting belligerent 
rights. 

It is very clear that no nation can have the rights of a belligerent, 
unless it pursues the conduct and maintains the attitude of a belliger- 
ent. If it claims to be in a state of Avar with another countr}', it must 
prosecute the war with the means it can command. If it ceases to carry 
on hostilities, it cannot say to neutrals that they shall regard its rights 
as a belligerent. In this case, hostilities were not only intermitted, but 
a free commercial intercourse was established at the very time the Board 
assume the parties were flagrante bello. They give this unfair advan- 
tage to Mexico : they propose to allow her the benefits of depredating 
upon our commerce, considering it illicit by reason of a state of Avar, 
while she is released from the burden of carrying on a war or present- 
ing to the world a belligerent attitude ; they regard the Castle as a be- 
sieged or blockaded place during the whole time it was in possession of 
the Spaniards, after they were driven from the interior of Mexico ; yet 
the Mexican decree of October 8, 1823, shoAvs that until that date they 
had as open and unrestricted trade Avith Spain as they could have had 
in the midst of the profoundest peace. The deposition of Presas, be- 
fore referred to, shoAVS that the same free intercourse was continued 



47 

after the decree of the 8th of October, 1823. The other proofs show 
that our merchants did believe, and had reason to believe, that there 
was no such hostilities betAveen Mexico and Spain, or between the Cas- 
tle and Vera Cruz, as would implicate their commerce with either. 

While I would avoid indulging in uncharitable imputations, I feel 
authorized to say that it appears to me that the singular conduct of 
Mexico — in establishing at one time a free commercial intercourse be- 
tween herself and Spain, and asserting no belligerent right — then issu- 
ing a decree of 'blockade without enforcing it — then again falling back 
into a quasi peace — afterwards renewing the decree of blockade, and 
siezing upon our vessels and cargoes, under circumstances which show 
the owners did not, and could not, know of the renewal of the decree, 
or the enforcement of it, and confiscating their property— looks to me 
like a design to entice our merchants to put their property within the 
grasp of their fangs. If in this I am wrong, I am not more so than the 
Board are in holding that she maintained in good faith a state of war 
with Spain, while the Castle was in possession of Spanish troops ; and 
that hostilities were so prosecuted against Spain as to be notice to all 
the world, that neutral commerce with the Castle was rightfully inter- 
dicted by her besieging or blockading force. 

The Board assume there was in fact an effective blockade of the 
Castle, from the promulgation of the first decree. It was attempted 
to be sliown in the former argument — and I then was and still am con- 
fident that it was shown — that in fact there never was an actual block- 
ade of the Castle by Mexico. I have added the foregoing remarks as 
a reinforcement of that argument ; and I do not allow myself to doubt 
but that the Board, on again looking at the proofs in this case, and the 
additional facts contained in the case of the Scott, (not yet considered 
by the Board,) and applying to them the legal rule of construction to 
which their attention will be invited, will be convinced that the block- 
ade, if it ever existed under the first decree of October 8, 1823, had 
been relaxed, and ceased some time before the issuing of the second 
decree. Without extending that argument, I will only bring to the 
notice of the Board some further authorities : 

Chancellor Kent, in his Commentaries, volume 1, p. 145, says : 

" The Government of the United States have uniformly insisted that 
' the blockade should be effective by the presence of a competent force, 
' stationed and present at or near the entrance of the port ; and they 
' have protested with great energy against the application of the right 
' of seizure and confiscation to ineffectual or fictitious blockades." 

Again he says, at page 146 of the same volume : 

" But if the blockade be raised by the enemy, or by applying the 
' naval force, or any part of it, though only for a time, to other objects, 
' or by mere remissness of the cruisers, the commerce of neutrals to 
' the place ought to be free. The presence of a sufficient force is the 
' natural criterion by which the neutral is enabled to ascertain the ex- 
' istence of the blockade. He looks only to the matter of fact ; and if 
' the blockading squadron is removed when he arrives before the port, 
' and he is ignorant of the cause of the removal, or if he be not igno- 
' rant, and the cause be not an accidental one, but voluntary, or pro- 
' duced by an enemy, he may enter, without being answerable for a 



48 

* breach of the blockade. When a blockade is raised voluntarily or 
' by a superior force, it puts an end to it absolutely; and if it be 
' resumed, neutrals must be charged with notice de novo, and without 
' reference to the former state of things, before they can be involved in 
' the guilt of a violation of the blockade." 

The assumption of the Board that there was a continuous blockade — 
a fact not to be assumed, but to be established by clear proof — cannot 
be sustained against the foregoing authority. In none of the cases, 
none that have been examined by the undersigned, is there any proof 
whatever that there was even a single armed vessel, not even a gun-boat, 
stationed about the Castle at the time of issuing the first decree, or at 
any subsequent period. The Board has assumed that Mexico had a 
considerable naval force ; but that fact does not appear in the cases. 
Indeed, there is reason to believe that she had but a small naval force 
at that time. Only two public armed vessels are mentioned in the 
proofs, the schooner of war Iquala and the Anahuac ; and it is not 
shown that either of them was stationed about the Castle ; they were 
both cruising at large in the Gulf. Neither of them is shown to have 
belonged to a blockading squadron ; and there is no proof there ever 
was a blockading squadron, or " competent force [or any force] stationed 
and present at or near the entrance of the port" — the Castle. And 
according to the law as laid down by Chancellor Kent, in Avhich all sound 
authorities agree, there was no blockade. All pretence for presuming 
an existing blockade when the Susan and the Scott sailed is believed to 
be unfounded ; indeed, the proofs show it to be unfounded. 

Besides giving, as I think the Board has done, more effect to the 
facts, or rather circumstances, favoring the notion of an actual block- 
ade than they are rightfully entitled to, I respectfully suggest, and feel 
confident it can be shown to the satisfaction of the Board, that they 
have mistaken and misapplied the rule of evidence in relation to block- 
ade. They do not disguise the fact that they have been liberal in pre- 
sumptions in favor of the blockade ; but the rule of law requires strict 
proof, and discountenances all latitude of presumption. 

At the same place in Kent's Commentaries (volume 1, p. 143) to 
which I have referred, is found the rule of law for which I contend, and 
claim the benefit of in the present case. I think the Board will be 
satisfied that they have overlooked the true rule in regard to the evi- 
dence, and have been guided to their conclusions in regard to the block- 
ade by a rule of a quite opposite character. I must invite their espe- 
cial attention to the following extract from page 144. Chancellor 
Kent says : 

" The law of blockade is, however, so harsh and severe in its oper- 
' ation, that, in order to apply it, the fact of the actual blockade must 
' be established by clear and unequivocal evidence ; and the neutral 
' must have had due previous notice of its existence ; and the squadron 
' allotted for the purposes of its execution must be fully competent to 
' cut off all communication with the interdicted place or port ; and the 
' neutral must have been guilty of some act of violation, either by going 
' in, or attempting to enter, or by coming out with a cargo laden after 
' the commencement of the blockade. The failure of either of the 
' points requisite to establish the existence of a legal blockade amounts 



i 



49 

^ to an entire defeasance of the measure, even though the notification 
' of the blockade had issued from the authority of the Government 
' itself." 

I venture to assert that not one of these requisite points is made out, 
as the law requires they should be, by clear and unequivocal evidence, 
in the case of the Susan or the Scott. The evidence, so far from being 
clear and unequivocal, it is not to be found ; there is not enough of it 
to support a plausible presumption. There is no proof that there was 
ever a blockading squadron, or even a single ship of war, stationed about 
the Castle ; no pi'oof of previous notice ; no attempt to enter after 
notice ; indeed, nothing is proved to implicate either vessel. 

The claimant and his counsel diflfer essentially with the Board as to 
the condition of Mexico at the time of the captures under consider- 
ation, in regard to the naval force of Mexico, and the employment of 
it. The Board say : 

" So far as the evidence upon this point goes, there is a decided pre- 
' ponderance in favor of the position that Mexico kept as large a mari- 
* time force in the vicinity of the Castle as was necessary, under the 
' law of natidns, to give effect to the blockade." 

If there be any proof in any of the cases which have come under 
the view of the counsel, (particularly including the Susan and Scott,) 
to show that any maritime force was stationed in the vicinity of the 
Castle — that a single vessel or a gun-boat was stationed there, or was 
about it, (only occasionally, as they were wandering about the Gulf) — 
such testimony has escaped his notice. At the time alluded to, the 
Government of Mexico was almost in a derelict state ; she had, as 
President Victoria stated on the first of January, 1825, no federal 
courts ; the ties which bound the Departments or Provinces to the 
central Government were broken; and he urges the re-establishment 
of them. 

It is therefore difficult to see how Mexico could — there is no proof 
that she did — keep up a respectable naval force. No maritime force 
except two schooners of war, the Iquala and the Anahuac, are men- 
tioned, and these were cruising about the Gulf. The assertion is there- 
fore repeated, with confidence in its entire accuracy, that there is no 
proof that any naval force, not so much as a single vessel of war, was 
ever stationed about the Castle, to maintain the proclaimed blockade, 
down to the time of the attacks committed on the Susan and Scott. 

The authority cited from Chancellor Kent shows what a belligerent 
must do to sustain his blockade, and with what clearness of testimony 
he must establish it. If presumptions are to be allowed, the most 
probable one is, that Mexico failed in every one of the indispensable 
requirements of a legal blockade. 

Though it is denied, and the evidence warrants the denial, that she 
ever had a blockading force stationed in the vicinity of the Castle, it is 
admitted that she had in the Gulf sufficient force to capture an unarmed 
neutral vessel while engaged in lawful trade ; but it was not expected 
that the claim for the Susan would be met and resisted by the argu- 
ment that she must have had a sufficient blockading force in the vicin- 
ity, because she had there (a doubtful fact) sufficient force to capture 
that vessel ; that is, if there is force sufficient to capture a single neu- 
4 



tral vessel in the vicinity of a place declared to be in a state of block- 
ade, that is evidence not only of an actual blockade, but the further 
evidence that the blockade has been kept up constantly and properly, 
from the day it was proclaimed. It seems to amount to this propo- 
sition : that, after proclaiming a blockade, without showing in point of 
fact an actual blockade, the party has a right to capture any vessel, in 
the vicinity of the port, that it has the ability to capture. 

Rather than give validity to such doctrine, it would be better for 
neutral commerce to give full eifect to a paper blockade. 

As both the Susan and the Scott sailed from the United States be- 
fore the decree of the 14th of December, 1824, was promulgated, they 
cannot be implicated for sailing to a blockaded port — if there never 
was, or ceased to be, a blockade under the first decree. 

They must have been warned off, or charged, with direct proof, with 
actual notice, before they could be liable to confiscation. 

Sailing before the establishment of a blockade, they would not be in 
delicto if they had attempted to enter the port, had there been a block- 
ading fleet before it as large as the whole British navy. 

In the argument in the case of the Scott, the two kinds of blockade 
are pointed out, and the legal doctrine applicable to each. In the sec- 
ond kind of blockade — a blockade with notification — actual notice of it 
need not be brought home to the master or owner of the neutral ves- 
sel. Of such a blockade there may be an implied or constructive 
notice ; but that is not the case in regard to a simple blockade. 

The Mexican blockade (admitting arguendo there was one) was a 
simple blockade. 

The undersigned is convinced that the Board, by not discriminating 
between the two kinds, and the doctrine in regard to notice peculiarly 
applicable to each, have been led to an erroneous conclusion in this 
case ; and have applied the doctrine of implied notice to a simple 
blockade, whereas it is peculiarly applicable to a blockade with notifi- 
cation. 

A blockade with notification is where the Government of the block- 
ading belligerent gives notice to the Government of a neutral nation 
of the actual blockade, and enjoins upon the Government of the neu- 
tral nation to make the fact known to her merchants. 

After a proper length of time, it may be presumed that such mer- 
chants have, through their Government, received notice of the block- 
ade. To such a case the doctrine of construction or implied notice is 
applicable. The form of proceeding in such a case will be seen by the 
paper hereto [annexed,] marked A. 

The doctrine of constructive notice, or knowledge aliende, referred to 
by the Board in support of their views in the case of the Susan, applies 
to cases arising under a blockade with notification. 

But there was no notification of the pretended blockade of the Castle 
of San Juan de Ulloa. Sir William Scott states, in one of the cases 
referred to, that a notification to one neutral nation is not a notifica- 
tion to another neutral nation. 

In the case of simple blockades — and such was the Mexican block- 
ade, if it was anything but a mere fiction — the law is laid down with 
great precision in the case of the '* Betsy "-—1 Rob. Rep., 93 — refer- 
red to in the filed argument, 



* 51 

Actual knowledge must be brought home to the neutral, before he 
can be implicated in a violation of the blockade. A proclamation or 
general notification is not a suflacient notice. "A knowledge of the ex- 
' istence of such a blockade cannot be imputed to the party, merely in ^ 

* consequence of such a proclamation or notification." — Wheaton on 
Captures, p. 193. 

The doctrine of all the cases is, that there must be actual knowledge 
of the blockade brought home to the neutral. This is distinctly stated 
by Wheaton and Sir William Scott, in the case of the " Betsy;" and 
by none anywhere controverted. The captors must show actual knowl- 
edge brought home to the captured — so the authorities say; but the 
Board seems disposed to be satisfied with less, much less, than I sup- 
pose the law requires. 

The counsel for the claimant differs widely from the Board as to the 
facts of the case. 

If it has been shown, as I think it has, that there was no actual 
blockade at the time the Susan and Scott sailed, then the ground of the 
presumption of the Board on the point of notice is swept away, having 
not a single fact on which to base the slightest presumption of notice. 

Assuming more than is proved, that there was a blockade when the 
first decree was issued, it is most evident that there was no blockade 
for some time before the second decree. The commerce to the Castle 
was an open, free commerce to neutrals when these vessels sailed ; and 
if there was, in fact, an investing force when they arrived, they could 
not be implicated until they were warned off. 

A neutral vessel sailing from a port before the knowledge of the 
blockade had reached it, is " entitled to a notice, even at the blockaded 
port.^^ — The Spes and Irene, 5 Rob. Rep., 76. 

If the counsel, in the argument submitted, went beyond what was 
warranted by the testimony in saying that the Susan was captured 
^^ out at sea,'^ the Board are equally without support from the proof, 
in holding that she was captured off the coast of Mexico, near the 
" Castle of San Juan dWlloa.^^ Of the two inferences, it is believed 
the former is, by the evidence, rendered the more probable. The proof 
does not show precisely where she was. The captain, with Lincoln 
and Manter, who authenticated the protest under oath, are the only 
witnesses giving testimony on the subject, who could know where the 
capture took place. The captain, in the protest, states : 

" Departed [from Havana, where he had been driven by stress of 
' weather] December 15, and, in prosecution of the legal voyage afore- 
' said, were fallen in with and captured by the national schooner the 
' Anahuac, Lieut. Com. William Cochrain, on the 20th of December, 

* and sent into the port of Sacrificios," &c. 

This language strongly conveys the impression, though it does not 
directly aver the fact, that the capture was made "out at sea." If 
she was not out at sea, and was in the vicinity of the Castle, she could 
hardly have been sent into the port of Sacrificios ; for that is in, or a 
part of, the harbor of Vera Cruz. But the American Consul, in his 
letter to the Secretary of State of his Government, says that she was 
"captured off the Castle, with provisions." This testimony by no 
means fixes the place of capture. The Consul must have spoken from 



52 

I nformation derived from others, not from the captured certainly, but 
probably from the captors. This is not an inference, but a fact ; it is 
shown in the very letter from the Consul in which the expression " off 
the Castle " is found, for in it he says: " The captain and supercargo 
' were taken out, and detained on board the vessel of war, so that I 
' have yet to learn all the facts connected with the capture." The 
captors were at Alvarado when this letter was written, and the infor- 
mation must have come from them, and not from the captain and su- 
percargo, who were then confined in a gun-boat at Sacrificios. 

The expression off the Castle ^ is not equivalent to near the Castle, 
A vessel is often said to be off a port when she is out at sea, many 
leagues distant from it. By the proofs, it appears that the first infor- 
mation we get that the Susan was captured off the Castle — which the 
Boai'd construe to mean "near the Castle" — is from the American 
Consul, in his letter of the 5th of January, 1825 ; but the Consul states 
in that very letter that he has not learned the facts of the case, because 
" the captain and supercargo were taken out, and detained on board the 
vessel of war." He must be understood as sending to our Government 
the Mexican account of the affair. The next thing we hear on the sub- 
ject is the letter of Taylor, Sicard, & Co., datsd Alvarado, 9th Janu- 
ary, 1825 — Taylor, of this firm, was the American Consul who wrote 
the former letter of January 5. It is very clear that this second letter 
also was written before any communication with the captain and super- 
cargo, and only stated what the captors or the Mexicans said in relation 
to the capture. It is very natural, as the Mexicans had already (within 
six days, and in the absence of the supercargo, captain, and crew of the 
Susan) sold the vessel and cargo, that they should assign a plausible 
cause, and select a proper place for the capture, in order to make sure of 
the booty. To show that the fact stated in this letter was also of Mex- 
ican origin, and ought not to be used against the claimant without proof 
of its truth, I extract a sentence from it. After alluding to the pre- 
tended condemnation, and the sale of the vessel and cargo, the writers 
say : " We are ignorant of all other facts, save that of her capture and 
condemnation." This shows that they did not know the place of the 
capture, though they gave the Mexican statement that it was off the 
Castle. It is hard, indeed, that this Mexican story, got up to cover 
the wrong, should be used, without being substantiated by proof, to de- 
feat a just claim. 

There is another fact in this case which, when brought to the particu- 
lar attention of the Board, must convince them that the Susan was not 
captured "near the Castle." 

The American Consul at Alvarado hastens to give early information 
to our Government of the capture. He writes to the Secretary of State 
here before he had seen the captain and supercargo, they being yet con- 
fined on board the Anahuac, or a gun-boat at Sacrificios. His letter 
is dated the 5th of January; in it he says : "The day before yester- 

' day, an American schooner, the Susan, of , Captain Newman, 

' was brought in here (Alvarado) as a prize," &c. It is obvious that 
he means to speak of the event as just having come to his knowledge ; 
and on the 9th January, his house (Taylor, Sicard, & Co.) wrote to the 
owner of the Susan, informing him of her arrival as a prize at Alvarado 



63 

on the 3d day of that month. It is a clear inference from these letters 
that the arrival of the prize, as the Susan is called, afforded the first 
information of her capture, and that arrival was on the 3d of January. 
Alvarado is but a few miles distance from Vera Cruz, and between 
them there is a daily, I may say, an hourly intercourse. Merchandise 
for the latter place is often discharged at the former. I take it as a 
fact established by the proof, not as a presumption, that the knowledge 
of the capture was not known at Alvarado until the 3d of January, and 
from the proximity and intercourse between that place and Vera Cruz, 
could npt have been known many hours before at Vera Cruz. It is 
clearly proved, and the Board so state it, that the Susan was captured 
on the 2,0th of December . If in truth she was captured "near the 
Castle," she must have been captured in sight of Vera Cruz, and the 
fact of her capture must have been known that very day at Vera Cruz, 
and within a few hours thereafter at Alvarado. If taken immediately 
after capture to Sacrificios, which is within three or four miles of Vera 
Cruz, her capture must have been known at Vera Cruz and Alvarado 
certainly within twenty-four hours, yet it appears not to have been 
known until the 3d of January. Where was the Susan during the thir- 
teen days from the 20th of December to the 3d of January, on which 
da}' she arrived at Alvarado, and when the fact of her capture ivas first 
made known at that place 1 

If it is answered, she was at Sacrificios, the reply is, if at Sacrificios, 
the knowledge of her capture must have been known as soon as the 21st 
of December to the American Consul at Vera Cruz, and to Taylor, 
Sicard, & Co. ; and they would have sooner written, and written in a 
different manner, if they Avere speaking of a bygone event. Why should 
she have laid thirteen days, or even one day, at Sacrificios, when Alva- 
rado, near by, was the place where prizes were sent, as appears it was 
in this and other cases'? There is no other way of accounting for the 
non-arrival of the Susan at Alvarado until the 3d of January, and that 
the capture was not known there until that day, but the fact that she 
was captured "out at sea." 

It seems to me that the two circumstances to which I allude support 
the position that she was out at sea when captured ; and are utterly at 
war with the Board's position, that she was captured "near the Castle." 
In their account of the affair, the captors meant to state a case that 
Would give plausibility to the condemnation, (if there was one ;) they 
therefore use the vague terms, " off the Castle." If they had stated the 
true place or time, they would have defeated their own object. I can- 
not resist the conviction that there was an artful misrepresentation of 
the transaction by the captors, which deceived our Consul, (by whom 
the claimant was misled,) for the purposes of securing to themselves the 
fruits of a wrongful capture ; and they will not have failed in their ob- 
ject, if the Board should hold on to their construction of the terms " off 
tjie Castle," means near the Castle. It is impossible to account for 
the lapse of thirteen days between the capture and the arrival of the 
Susan at Alvarado, if she was seized near the Castle ; but if she was 
on her voyage, as the captain and supercargo state, and out at sea, 
there is no difficulty in the case. I still think, all things considered, 



54 m 

that the testimony warrants the position in the former argument, that 
the capture was made out at sea. 

The Board regard their position, that the capture was near the Cas- 
tle, as strongly fortified by the consideration that it is an important 
fact for the claimant to show, that the Susan was captured out at sea, 
and therefore it was a fact he would have proved if it had been true* 
This is certainly unconclusive reasoning ; the premises for the conclu- 
sion are wanting. In the view taken by the claimant and his counsel, 
nothing could be more immaterial than the place of capture^ If there 
was not, and they solemnly believe there was not, an actual bleckade— ^ 
if it was understood (as it is proved) at New Orleans, that free trade 
was carried on with the Castle, (see the letter of the captain of the 
Scott)-p-how was the place of capture important 7 

It was as much the violation of neutral rights to capture her in the 
vicinity of the Castle, or under its guns, as it would have been to cap- 
ture her in the middle of the Gulf, or at the mouth of the harbor from 
which she sailed. If there was no effective blockade, as the claimant 
certainly believed and still believes there was not, or if there had in re- 
ality been an effective blockade, and knowledge of it was not brought 
home to the owner or master, he was, by the law of nations, safe from 
legal capture anywhere and everywhere. It is the peculiar views of the 
Board in relation to the blockade, views never entertained by the claim- 
ant or his counsel, which make the place of capture at all material. 
The argument, therefore, that he did not render certain what was un- 
certain, but the certainty of which he thought immaterial, thotigh in 
this respect the Board differ from him, is not entitled to the considera- 
tion given to it. 

Having, as it is hoped, shown to the satisfaction of the Board that 
there was no blockade which the Susan or the Scott did or could vio- 
late, there remains another objection to the claim, which calls for a few 
remarks. 

It is urged that the two schooners are implicated for violating a 
siege ; the Board seem disposed to regard the Castle as a place in an 
actual state of siege, when the Susan was captured and the Scott 
fired on. 

If the Susan was not near the Castle — a fact which I regard as well 
established — then it is very clear she cannot be implicated in the offence 
of attempting to violate a siege. The law referred to by the Board 
will not be questioned ;. but, as in the case of a blockade, there must be 
clear and certain proof of an actual siege, notice or knowledge of it 
brought home to the offending party, and also a well-authenticated act 
of assistance or attempted assistance to the besieged, should be proved 
upon the neutral. 

The great and important fact of an actual siege of the Castle is de- 
nied. If Mexico did not see fit, or was not in a condition, to station a 
naval force about the Castle, which is entirely surrounded by water, 
and at too great distance from land to be much annoyed by batteries 
thereon, it is extremely improbable that it was besieged by a land force ; 
arid a siege of such a place, without a blockading force aiding in it, 
would have been ineffective and idle. 

While the rights of Mexico as a besiggijig power are admitted, the 
fact of a siege is positively denied. 



55 

This is too important a point to rest on mere presumption^ for Mex- 
ico lias not set up such pretension, and it should not be set up for heri 

The importance to Mexico of cutting off supplies from the Castle^ 
and thus compelling its surrender, is not any proof that she did this 
thing, or attempted to do it. For a long time after the Castle Avas held 
adversely to Mexico, there were no hostilities prosecuted against it; 
The decree of the 8th October, 1828, shows that, anterior to that time^ 
a free and friendly intercourse was carried on between the Castle and 
Vera Cruz. Presas's deposition shows that, after that time^ the same 
free and friendly intercourse existed between the two places ; and the 
letter of the captain of the Scott says that trade was free to neutrals 
with the Castle, and that that fact was notorious at New Orleans. 

But what is decisive as to this question of siege is, the letter of our 
Consul at Alvarado, written on the 5th January, 1825 ; the opening 
sentence of the extract furnished in this case is as follows : 

" Hostilities have again commenced between San Juan d'Ulloa and 
Vera Cruz." If they then commenced, they did not exist before. The 
Susan was captured fourteen days before that on which these hostilities 
commenced, and the Scott was then at the Castle. 

It may well be asked, when did the siege commence 1 What amount 
of force was employed in carrying it on '? What one operation did the 
besieging force conduct against the place ? To show that there was an 
actual siege, there should be clear proof on all these points ; but there 
is none on either of them. The importance of a vigorous siege to Mex- 
ico, and the proof of one, are very different things. 

No cruising force is shown or pretended at any time. Is there the 
slightegt proof of any attempt to reduce the place by siege 1 The land 
batteries, it is true, fired at the schooner Scott, after she had been per- 
mitted freely to enter the waters of the Castle ; but this will hot, I 
trust, be construed into a besieging operation. 

To constitute a siege, there must be a besieging force investing the 
place ; there was none in this case — none pretended. There were prob- 
ably a few troops in the forts, but that fact is not proved ; but they had 
at no time operated against the Castle. 

To use the language of Chancellor Kent as applied to blockade, 
which is not less applicable to a siege, " The presence of a sufficient 
' force is the natural criterion by which the neutral is enabled to ascer- 
' tain the existence of the siege. The neutral looks only to the matter 
' of fact." 

There is no proof that any besieging force ever invested the Castle ; 
that any annoyance was ever attempted, nor a battery raised against it ; 
the land batteries were constructed undoubtedly for the defence and 
protection of the city of Vera Cruz. 

Unless there can be an effective siege (which neutrals are bound to 
respect) without a besieging force, without manifestation of investment, 
the Castle cannot be regarded as in a state of siege. The presence of 
power in the besiegers is the only notice which neutrals are bound to 
respect. This is the true and only safe doctrine on the subject. 

The undersigned cannot believe that the Board will feel authorized 
to sustain Mexico in seizing and converting to her use the Susan and 
Scott, and their cargoes, on the ground of an invisible and unproclaimed 



56 

siege never existing. It really appears to me tliat this ground of de- 
fence is, if possible, more untenable than that which is based on the 
blockade, weak and worthless as I regard that to be. 

I will close these remarks by apologizing for their great length. My 
confidence in the justice of this claim has strengthened by the additional 
consideration I have given to it. Though this confidence in itself should 
have no influence with the Board, it will, I trust, be received as an ex- 
cuse for any expression which may have inadvertently escaped me, 
which may not be — as I intended they should be — perfectly respectful 
to the Commissioners, and for any additional trouble I may give them. 
I hope it may induce them to revise the proofs, and reconsider their 
own views and argument. 

All which is respectfully submitted. 



Washington, February 10, 1851. 



JAMES H. CAUSTLN. 



[A.] 

From American State Papers. Gales and Seaton's reprint, Vol., 3, page 2"65. 

NOTICES OF BLOCKADE. 

Lord Grenville to Mr, King. 

March 22, 1799. 

" The undersigned, Secretary of State of His Britanic Majesty,' 
has received His Majesty's commands to acquaint Mr. King, Minister 
Plenipotentiary of the United States of America, that the King, judging 
it expedient to avail himself of the superiority of his naval forces for 
the defence of his dominions, has signified his commands to the Lords 
Commissioners of the Admiralty to cause the most rigorous blockade to 
be established at the entrance of all the ports of Holland, which will 
be maintained and enforced in the strictest manner, according to the 
usages of war, acknowledged and observed in similar cases. 

Mr. King is therefore requested to apprize the American Consuls and 
merchants residing in England, that the above-mentioned ports of the 
United Provinces are and must be considered as being in a state of 
blockade, and that from this time no neutral vessels can be suficred to 
enter them, upon any consideration, or under any pretence whatever ; 
and that all the measures authorized by the law of nations, and the re- 
spective treaties between His Majesty and the difierent neutral Powers^ 
will henceforth be adopted and executed with respect to vessels destined 
for the said ports, or such as shall attempt to enter them after this 
notice. GRENVILLE." 

Lord Grenville to Mr. King. 

" The undersigned. Secretary of State, has received His Majesty's 
command to inform Mr. King, that His Majesty has judged it expedi- 
ent to suspend for the present the blockade of all the ports in the Uni- 
ted Provinces, which was established by His Majesty's orders, and which 
was announced to Mr. King by the undersigned, in his note dated March 
22d last. GRENVILLE." 



57 

Mr. Merry to Mr. Madison. 

April 12, 1804, 

" Mr. Thornton not having failed to transmit to His Majesty's Gov- 
ernment an account of the representation which you ■»7ere pleased to ad- 
dress to him under date of the 27th of October, last year, respecting the 
blockade of the islands of Martinique and Guadaloupe, it is "with great 
satisfaction, sir, that I have just received His Majesty's commands, 
signified to me by his principal Secretary of State for Foreign Affairs, 
under date of the 6th of January last, to communicate to you the in- 
structions that have in consequence of your representation been sent to 
Commodore Hood and the Judges of the Vice Admiralty courts in the 
West Indies. 

I have accordingly the honor to transmit to you, sir, enclosed, the 
copy of a letter from Sir Evans Nepeau, Secretary to the Board of Ad- 
miralty, to Mr. Hammond, specifying the nature of the instructions which 
have been given. His Majesty's Government doubt not that the promp- 
titude which has been manifested in redressing the grievance complained 
of by the Government of the United States, will be considered by the 
latter as an additional evidence of His Majesty's constant and sincere 
desire to remove any ground of misunderstanding that could have a 
tendency to interrupt the harmony which so happily subsists between 
this Government and that of the United States. 

ANTHONY MERRY." 

[Extract from the enclosure.] 

" Thereupon I have their Lordships' commands to acquaint you, for 

* his Lordship's information, that they have sent orders to Commodore 

* Hood not to consider any blockade of those islands as existing, unless 

* in respect of particular ports which may be actually invested, and 

* then not to capture vessels bound to such ports, unless they shall have 

* previously been warned not to enter them." 



MR. CAUSTEN'S ADDITIONAL ARGUMENT— SUSAN, 
SCOTT, &c. 
[FUed March 12, 1851.] 

The importance which the Board seem to attach to the facts, that the 
Susan was, as set forth by the captain's protest, bound for the Castle 
of San Juan d'Ulloa — that she anchored near to it — that she obtained 
a pilot from it — that the captain landed there and took off two launches, 
which were loaded from the schooner and taken to the Castle, all before 
the firing from the city batteries opened on her, go, as the remarks made 
by the Board seem to hold, to prove an illicit trade, induces me to sub- 
mit to the Board the following brief remarks : 

The facts above stated are all freely admitted ; but that they go to 
prove illicit trade, a violation of blockade, or smuggling, is no less 
freely resisted. 

The vessel had cleared out at Baltimore for the Gulf of Mexico, 
which of itself indicated an intention to go to any part she might desire 



58 

•within the Gulf, or even elsewhere, including the Castle of San Juan 
d'Ulloa ; which, according to the proof before the Board, was regarded 
at New Orleans (and doubtless also at Baltimore) as open to our com, 
merce ; and the probability is that she intended to trade at both places 
stopping first at the Castle to sell her provisions, and then proceed to 
Vera Cruz to sell her fine dry goods. If the master, to whose discretion 
the selection of a port or ports seem to have been confided, supposed 
he had a right to trade at the Castle, or in fact had such legal right, (as 
the argument filed on yesterday, in the judgment of the undersigned, 
fully established,) then his going there was clearly no intention to do 
wrong ; nor can it be regarded as wrong in fact or in law, until this 
honorable Board shall have so decided, after full consideration of the 
proofs, the argument, and the laws, in connection with the existing cir- 
cumstances of the case. 

The mere fact of clearing for one port and sailing to another port, 
which is practiced every day, is fully sanctioned both by common usage 
and by law. No vessel is bound to go at all to the particular port for 
which she clears out ; merchants resort to such disguised or masked 
voyages for the purpose of preventing a competition injurious to the ad- 
venture they aim to make profitable by secrecy ; and no one dreams of 
imputing to them, nor does the law, any intention to do wrong ; there 
was therefore no moral wrong in trading with the Castle. And the 
question, whether it was wrong in the view of any existing law, has 
been raised and answered heretofore, and now awaits the decision of the 
Board ; and it is not my purpose to disturb that question and answer 
at this time. 

That the Susan ran boldly into the harbor, and anchored under the 
guns of both the city and the Castle, is manifest proof that she did not in- 
tend to do wrong to either, and therefore entertained no fear of injury 
from either ; her innocence was relied on, but it was wantonly abused. 

The idea that first met my ear on yesterday, that goods were often 
landed at the Castle for the purpose of being smuggled into Vera Cruz, 
may be true ; and if true, it shows that supplies for the Castle from 
Vera Cruz would necessarily follow, (even if not obtained from thence 
openly, as has been proved,) and the result would be a quasi peace and 
no blockade. 



To the honorable the Board of Commissioners on Claims against 

Mexico. 

IN THE MATTER OF THE CLAIMS FOR THE SCHOONERS SUSAN AND 
SCOTT, AND THEIR CARGOES. 

I fear I should go beyond allowable limits, if I should presume to en- 
ter into a further discussion of the general merits of these claims, 
though I am constrained to say there are many positions laid down by 
the Board, in regard to the laAV of blockade, and its application to the 
facts in the two cases, in which I am unable to concur ; but in regard 
to the facts introduced by the Board, upon which they place some of 
their strongest objections to these claims — being first brought to notice 



59 

in their written opinion— 1 trtlst I may be allowed to make a brief com- 

" The law of blockade," as Chancellor Kent observes, is " a harsh 
and severe law in its operation " towards neutrals ; they ought not 
therefore to be involved in its penalties by a latitude of construction 
and forced inferences from the facts; its application is not to be tavor- 
ed in that way. This is the established doctrine m relation to penal 
laws ; and that of blockade i? highly so. The fact of an actual blocks 
ade, as well as that of notice to the party charged with violating it, must 
be established, as the same writer says, " by clear and unequivocal 

It appears to me, and I say it with sincere respect, that the Board 
have not, in the view they have taken of these cases, given the claimant 
the benefit of these rules of law. n i • r 

These new facts take away the grounds of some of the mterences - 
drawn by the Board. By the fair use of them, and With the benetit 
of the well-established principles of the law of blockade applied to them, 
the claim in both cases is, in my opinion, well made out. , ^ ^, . 

The consideration of the cases which I now ask is conhned to that 
part of it only which is affected by these new facts. 

I perceive nothing in the decision of the Board to counteract these 

1st. That if there was not an actual subsistitig blockade of the Cas- 
tle at the time of the captures of these vessels, then the claims for them 

are well established ; and ,,,,-, . ^^ ^ l- \. *. 

2d. That if, in truth, there was an actual blockade at that time, but 
these vessels were not notified of it in the way required by the law of 
nations, they did not incur the penalty of confiscation. 

I understand the Commissioners to admit, though not m explicit 
terms, that on the proof submitted by the claimant that thecases were 
made out, or rather would be made out, if it had been a trial between 
individuals ; but they require more than a prima facie case. 

If the ar^rument of the counsel assumes what the Board says it seems 
to assume, " that the Board are confined to the proofs which are pre- 
sented by the claimant himself,'' it certainly assumes what was not 
intended ; and it is not doing justice to the capacity of the counsel, 
humble as it may be, to suppose he would present such a proposition to 
a Board so intelligent and so capable of detecting its unsoundness, un- 
less his language has that unequivocal import. The proposition in the 
argument, which may have been mistaken for that above stated, is, 
that the claim ought to rest on the proofs, not on those presented by 
the claimant only— on all the proofs ; and that these proofs ought not 
to be counteracted or overborne by presumptions, or the assumption ot 
facts not proved. The argument contends that where there is no proot 
of a court with or without jurisdiction— of a condemnation with or with- 
out cause— the Board ought not to assume there was a court, that it 
had jurisdiction, that it did pronounce a decree of condemnation m the 
regular course of proceedings, ^nd that it had a just cause lor that de- 

But this argument is not, it seems, regarded by the Board as sound. 
Another position contended for in the argument was, that the proot ol 



60 

a proclamation of a blockade was not proof of an actual blockade^ nor 
was it a legal ground of the inference of an actual blockade. 

The first opinion given against the claim for the Susan rested, as it 
was conceived, upon this assumption, and others that appeared even 
less plausible, as there was no direct, nor indeed indirect, proof of any 
actual investment of the Castle. 

By a subsequent decision in the Scott's case, the latitude of presump- 
tion seems to be a little circumscribed ; and the Board have produced, 
what it was certainly proper they should do, proof which has satisfied 
them there was an actual investment of the Castle of San Juan de Ul- 
loa. Upon this proof, as it is new, and now first brought to notice in 
this decision, the counsel for the claimant thinks he has a right to com- 
ment, and he does not doubt the Board will give him a favorable hear- 
ing- 

The first part of the new evidence which I shall comment on is Santa 
Anna's plans for reducing the Castle, as disclosed by Mr. Poinsett. 
These plans were — 1st. To blockade the Castle by water. 2d. To 
construct a battery on each extremity of the harbor, to prevent the en- 
trance of shipping. And 3d. To place batteries behind the city, to throw 
shells into it. " These plans (say the Board) seem to have been car- 
ried into execution." 

I must say that I can find evidence to establish the assertion to a 
limited extent only. As to one of them — a range of mortar batteries 
behind the city of Vera Cruz — I have not been able to find anywhere a 
particle of evidence that it was ever attempted to be executed. If they 
had batteries at the extremities of the harbor of Vera Cruz, they did 
not use them for the purpose indicated by Santa Anna. 

If the batteries projected by Santa Anna to prevent the entrance of 
shipping into the harbor were actually constructed, manned, and ready 
to execute the designed purpose, how did it happen that the Scott sailed 
into the harbor in open broad day, immediately under their guns, without 
drawing a fire from one of them 1 If the Castle was blockaded by a 
competent force, or any force, how did it happen that she slowly and 
deliberately proceeded to the vicinity of the Castle, without the slightest 
interference from that force 1 Her entrance was not stealthy, or made 
under circumstances calculated to elude the vigilance of the blockaders. 
The time and circumstances are stated with great particularity, and, 
for aught that appears, with perfect accuracy, in the protest. The 
following is the detail of them : 

At half-past three o'clock, she came in sight of the Castle ; at half- 
past four, got a pilot from the Castle ; and twenty minutes after five, 
came to anchor. After that, she got out her boat, and the captain 
went on shore in it ; at forty minutes past six, the boat returned with 
two launches from the Castle for the cargo ; these launches were loaded, 
and sent on shore. 

Not until all this was done was there a gun fired from the battery 
on shore. 

This conduct on the part of the Mexicans is utterly inconsistent with 
the assumption of the Board, that the Castle was at this time actually 
blockaded and besieged. 

If, in fact, there was a present blockading force by water, if the 



61 

batteries on land were devoted to the seige, ■why was the Scott permit- 
ted to approach the Castle leisurely in the early part of the afternoon, 
to get a pilot from it, to pass the batteries which commanded the har- 
bor, to anchor in the vicinity of that fortress, lade from her cargo two 
launches, and send them on shore, without interruption, and before the 
smallest intimation from the Mexican authorities that her conduct was 
illegal and improper 1 

Another fact which appears in the proofs, (see the Protest, Doc. No. 
6,) but which must have escaped the Board's notice, is also utterly in- 
consistent with the assumption of an actual blockade when the Scott 
entered the harbor. After discharging her cargo — after being raised 
(for she was sunk by the Mexicans) by assistance of the garrison — her 
damages repaired, and she fitted for sea — all done under the eyes 
of the Mexicans — she sailed from the Castle on the 19th of February, 
on her voyage to New Orleans, without the slightest molestation fronl 
the imagined besieging or blockading force. The leaving of a block- 
aded port is as much a violation of the blockade as the entering into it. 
(1st Kent's Com., 146.) 

These facts are more than sufficient to destroy the presumption so 
slightly countenanced by the other proofs, but entertained by the Board, 
that the Castle was blockaded when the Scott visited it and the Susan 
was captured. 

But as this presumption of an actual blockade, which, in my view of 
it, is no better than an uncertain conjecture, is to be set up against the 
claims for the Susan and the Scott, I shall proceed to show that even 
then they were not condemnable, as the proof now stands, under the 
law of nations. 

One of the inferences which sustained the views taken at €rst by the 
Board against these claims, and without which their conclusion could not 
have been arrived at, is completely destroyed by the new proof they 
have introduced. That assumption is, that there had been an actual 
blockade of the Castle continuously kept up since the proclamation of 
the 8th of October, 1823. In the former argument for the claimant, 
this was denied, because it was not proved ; but the Board clung to it, 
because it was not disproved. 

It is now, however, disproved by the authority introduced by the 
Board itself. Speaking of the state of things as they existed on the 
11th of March, 1825, Mr. Ward says, in the extract introduced into 
the decision of the Board : 

" The Castle was occasionally supplied with fresh provisions by the 
Spanish flotilla from the Havana." (Vol. 2, page 69.) And on the 
same page it is stated that " the island of Sacrificios " " had been con- 
' verted into a regular fortification, under which the Mexican gun- 
' boats sought protection on the approach oj^ the Spanish Jleet.'^ 

I feel warranted in asserting, and I am sustained in the assertion by 
the authority of judicial decisions which will not be controverted, that 
the proof shows that the blockade (supposing it ever existed as a legal 
blockade) was raised, and, in consequence thereof, neutral vessels had 
a perfect right to trade with the Castle. 

I perceive, and much regret it is so, that the Board take a difierent 
view of the law of blockade, and particularly of the doctrine, of no- 



/ 



62 

tice to neutrals, from that which I have gathered from the books and 
decisions on the subject ; and I therefore feel it to be my duty to refer 
to some authorities that will, I think, correct the error, on whichever 
side it may be. 

The Board have presumed an actual blockade simultaneously with 
the decree of the 8th of October, 1823. In this, I think they have 
erred ; but, for the argument, assume it to be correct. As soon as a 
Spanish force competent to drive away the Mexican blockading force 
appeared, and did drive it away, the blockade was terminated, and 
neutral vessels might thereafter with impunity directly trade with the 
Castle. This position is supported by the very best authorities ; they 
are carefully analyzed, and the doctrine thus stated by Chancellor Kent, 
(1 Com., 146.) 

" But if the blockade be raised by the enemy, or by applying the 
' naval force, or part of it, though only for a short time, to other objects, 
' or by the mere remissness of the cruisers, the commerce of neutrals 
' to the place ought to be free." (Authorities : 2d Caines^ 1 ; Letter 
of the Secretary of State to Mr. King, Sept. 20, 1799 ; 6 Rob., 112.) 

Again he says, on the same page : 

" When a blockade is raised voluntarily or by a superior force, it 
' puts an end to it absolutely ; and if it be resumed, neutrals must be 
' charged with notice de novo, and without reference to the former state 
' of things, before they can be involved in the guilt of a violation of 
' the blockade." 

The blockade proclaimed in the decree of the 8th of October, 1823, 
was raised by the Spanish fleet from the Havana ; the gun-boats, the 
only maritime force that is proved ever to have been stationed and 
present about the Castle, (all the authorities say there must be ships,) 
fled for protection behind the fortified island of Sacrificios ; and the 
garrison in the fortress was relieved by that fleet, which was, of course, 
superior to the blockading force — so states Mr. Ward. This was a 
superior force, whose visits to the Castle evidently were often repeated, 
to supply the garrison with provisions, which the Mexican force, what- 
ever it was, could not prevent ; nor does it appear it ever attempted to 
prevent. On the approach of the Spanish flotilla, it did not ofier resist- 
ance, but fled to its fortified protection behind Sacrificios. 

This, to use the language of Chancellor Kent, ^' put an end to the 
blockade absolutely. ^^ What was the right of neutrals thereafter'? It 
was unrestricted liberty to trade freely with the Castle until the block- 
ade was resumed ; and what was equally necessary and important, 
until the neutrals were ""charged with notice de novo, without refer- 
ence to the former state of things.^' This is the unquestionable law 
on the subject. 

When was the blockade of the Castle, which is proved to have been 
raised, resumed, and such notice given to neutrals 1 This is left alto- 
gether to conjecture ; but the fact of resumption and notice, neither of 
them proved, must be assumed, to make out the show of a defence to 
the claim under consideration. 

It is not unreasonable to surmise that, on the retirement of the Span- 
ish fleet, the. gun-boats njay. have come out from their hiding-place, and 



63 

taken a station about the Castle ; but this per se is not a blockade 
which affects neutral rights. There must be, besides the resumption 
of the blockade by a force " fully competent to cut off all communica- 
tion" with it, as Chancellor Kent says, "a notice de novo, and with- 
out reference to the former state of things, before they [neutrals] can 
be involved in the guilt of a violation of it." 

Public transactions are regarded as proofs in such a case, and may 
be resorted to as evidence for the claims as well as against them. It 
is well known that after the proclamation of the decree of the 8th of 
October, 1823, down to December, 1825, when the Castle was surren- 
dered to the Mexicans, a space of more than two years, it was supplied 
with provisions and munitions of war by the Spanish fleet, or from on 
shore at Vera Cruz. If supplied from on shore by the permission or 
connivance of Mexico, or in her inability to prevent it, that in itself 
was a renunciation of the blockade ; and it could not be resumed so as 
to affect the rights of neutrals without a new notice to them ; if sup- 
plied from the Spanish fleet, that also put an end ^^ absolulely'' to the 
blockade. 

The visits of the fleet to the Castle were, as Mr. Watrd says, occa- 
sional, that is, repeated ; and whenever they happened, all pretence of 
a blockade was at once ended. Until another was instituted by an in- 
vesting force, and a new notice given, neutrals could rightfully trade 
with the Castle as freely as if it had never been in a state of blockade. 

The doctrine in regard to notice is thus laid down by Chancellor 
Kent, (1 Com., 147) : 

"It is absolutely necessary that the neutral should have had due 
notice of the blockade, in order to affect him with the penal conse- 
quences of a violation of it. This information may be communicated 
to him in two ways : either actually or by a formal notice from the 
blockading power," (there is no pretence that such a notice was given 
to the Susan or the Scott ;) " or constructively, by notice to his Gov- 
ernment, or by the notoriety of the fact." 

There is no proof or pretence that any notice of a blockade — of the 
original blockade or any of the resumed ones — (if they ever existed,) 
was given to our Government, to act constructively upon our merchants. 

But the position of the Board is, that the notoriety of the blockade 
of the Castle was such as to be constructive or implied notice to all 
neutral merchants, and of course to the owners of the vessels in ques- 
tion. I beg that this proposition may be critically considered, for it is 
one of the main points of divergence in the arguments for and against 
the claims herein discussed. Evidently, the not(friety which, in the 
view of tlie Board, should have arrested the intention of our merchants, 
had relation exclusively to the blockade proclaimed in the decree of the 
8th of October, 1823 ; but that blockade ceased, and, to reiterate the 
language of Chancellor Kent, an " an end was put to it absolutely " 
by the first visit of the Spanish fleet to the Castle. 

By that event the neutral merchants were remitted to the same state 
in regard to trade with the Castle in which they would have been if 
there had been no previous blockade, no proclamation, no notice of it 
whatever. Everything was to be begun de novo. 

But it may be said the blockade was afterwards resumed. For the 



64 

sake of argument, let that be granted. The resumption was a new 
blockade ; and what notice or notoriety was given to it 1 The law re- 
quires a notice to be given " de novo,^^ and without reference to the 
former state of things. ^^ 

If the blockade was in fact resumed, that was also raised on the 
return of the Spanish fleet ; and if resumed again, that was the third 
blockade, and neutrals were entitled to another " notice de novo, with- 
' out reference to the former state of things, before they can he involved 
' in the guilt of violating it.^^ 

It is certain that the first blockade was raised by the Spanish fleet. 
Mr. Ward's book places that fact beyond controversy. And if it was 
resumed again, the evidence shows that it was raised again by that 
fleet. 

If it is assumed that there was an actual blockade when the Susan 
was captured and the Scott damaged, no one can tell when it com- 
menced ; but it must have been subsequent to the last visit of the 
Spanish fleet to the Castle ; and it would be carrying presumption be- 
yond all allowable limits to suppose that there was any notice of it or 
notoriety, which on legal principles could implicate either the Susan or 
the Scott in the guilt of violating it. 

The rule of law which I ask may be applied to this case is essential 
to the protection of neutral commerce, but at the same time it respects 
and upholds belligerent rights to the full extent conceded by the law of 
nations. Neither sound policy or justice will tolerate the extension of 
these rights beyond the limits clearly marked by admiralty decisions 
and jurists of the most approved authority. 

" The law of blockade," as Chancellor Kent observes, (1 Com., 
144,) " is, however, so harsh and severe in its operation, that in order 
to apply it, the fact of the actual blockade must be established by 
clear and unequivocal evidence ; and the neutral must have had due 
previous notice of its existence ; and the squadron allotted for the 
purposes of its execution must be fully competent to cut ofi" all com- 
munication with tlie interdicted place or port ; and the neutral must 
have been guilty of some act of violation, either by going in, or at- 
tempting to enter, or by coming out with a cargo laden after the com- 
mencement of the blockade. The failures of either of the points 
requisite to establish the existence of a legal blockade amounts to 
an entire defeasance of the measure, even though the notification of 
the blockade had issued from the authority of the Government itself." 
Claimants have a right to resist presumptions pushed beyond what 
the evidence clearl^ and unequivocally warrants, in order to give efiect 
to this harsh and severe law. 

The first proclaimed blockade having ceased, and the notice and no- 
toriety of it become inefiective, it will be impossible, as I think, to find 
any proof in this case, or in the character of public events, to sustain 
a presumption of due notice or notoriety of any succeeding actual 
blockade, and particularly that which is presumed to have existed when 
the Susan and the Scott left their respective ports in the United States. 
Even the Mexican Government itself was conscious that there was 
nothing in the state of things in regard to the blockade of the Castle 
which could fairly involve neutrals in penalties for trading with it at 



that time ; for, on the 14th of December, 1824, it declared at Mexico 
the contimiance of the blockade established by the decree of October 
8, 1823. Why did Mexico issue the latter decree, if she believed that 
there was then an effective blockade under the first decree, which would 
involve neutral commerce with the Castle in the penalties of confisca- 
tion ? If the first had not been raised or relaxed, it Avas a nugatory 
act. But she must have known — and the second decree is a distint ac- 
knowledgment of the fact — that without such new notice, neutral com- 
merce with the Castle could be carried on with impunity. She was 
undoubtedly well aware that the old blockade had been raised, and that 
neutrals were not obliged to respect it. Hence the cause and the ne- 
cessity of that second decree. It was a notice of a new blockade, 

Of that new notice, neither the Susan or the Scott can by any stretch 
of presumption be charged with knowledge ; ■ and it is only by such no- 
tice brought home to them, that either could be involved in the penalty 
of confiscation. They both sailed before this decree was issued ; and 
the Susan was captured the same day it was promulgated at Vera 
Cruz. 

Assuming there was at that time an actual and effective blockade, 
neither of these vessels had actual or constructive notice of it, and could 
not be in delicto until they had such notice, and by some unequivocal 
act had shoAvn an intention to disregard the warning given to them. 
The law, as correctly stated by this Board in the case of the Julius 
Cnesar and Louisiana, sustains this position. 

Tliere is a remark in the opinion of the Board which imports that 
they regard the notoriety of " the efforts and preparations on the part 
of Mexico" to reduce the Castle, as tantamount to an actual blockade, 
and due notice of it ; and, consequently, that the property of whoever 
undertook thereafter to trade with it was involved in the hazard of loss. 

In regard to this position, I shall only say it is to me a novel princi- 
ple, and, to my mind, as unsound as it is novel. I have never found 
'any trace of it in any report, or any treatise on the subject; it subverts 
the doctrine of Chancellor Kent, and the cases he refers to ; and goes 
far to make a state of war a prohibition of neutral commerce with either 
belligerent. 

A brief notice of the inference of the Board, drawn from an expres- 
sion in the policy of insurance on the Constitution and her cargo, in 
support of the ground assumed, that there was an actual blockade of 
the Castle, and that it was notorious in New Orleans when that vessel 
sailed, will close my remarks. The expression is not taken from the 
policies, but from the report of the remarks of the court in the suit 
upon them. Assuming its accuracy, it does not, in my opinion, uphold 
the inference drawn from it. The sentence quoted is as follows : . 

" Both vessel and goods are warranted American, and that the former 
* shall not force the blockade." 

I should understand it to mean the blockade of any place, and it is 
probable it was so expressed in the policies. 

The introduction of the expression into the policies can be accounted 

for in a more reasonable way than that assigned by the Commissioners, 

Why is it construed to have reference to the blockade of the Castle? 

The voyage insured is to Vera Cruz, and no mention of or allusion to 

5 



66 ^ 

the Castle is found, and ought not to be presumed. It was known at " 
New Orleans, at the date of the policies, that Spain had a fleet at the 
Havana which often visited the Castle ; and when it did so, the Mexican 
maritime force fled from it, and sought protection under the batteries 
on Sacrificios. The insurers undoubtedly thought, that when the Con- 
stitution arrived, it might be found that the Spanish fleet — as it was 
competent to do so — was blockading the port of Vera Cruz, for which 
port the schooner was cleared, and therefore required a warranty against 
forcing the blockade. This is certainly the more probable conjecture ; 
and to show that this is not a mere conjecture now resorted to in order 
to escape from the inference of the Board, but was a widespread ap- 
prehension at that time, I refer to the case of the brig James & Mary, 
Morgan master. (See the United States Consul's letter of July 10, 
1824, to the Secretary of State, on the consular files of the Board for 
Alvarado and Vera Cruz, No. 127.) That vessel sailed from Gibraltar 
for Vera Cruz ; but apprehending that the port of Vera Cruz might be 
blockaded by the Spanish fleet, she went first to Alvarado to inquire 
into that fact. 

. But I am not only willing but desirous that the Board should take 
the opinion of the insurance companies in New Orleans ; and the very 
one they have referred to, the Louisiana State Insurance Company, on 
the very point to which they refer, viz : the notoriety of the blockade of 
the Castle at New Orleans. 

The departure of a neutral vessel from a blockaded port, (unless the 
vessel was in it, and laden at the time the blockade was instituted,) is 
as clearly a violation of that blockade as the entrance into the port. 

'' The object of a blockade (says Chancellor Kent, 1 Com., 146) is 
' not merely to prevent the importation of supplies, but to prevent ex- 
' port as well as import, and to cut off all communication of commerce 
' with the blockaded port." 

If the Castle was known at New Orleans to be in a state of blockade, 
it is a fair inference that an insurance company there would not insure* 
at all — certainly not at the ordinary rate — a vessel and cargo from the 
Castle ; for the risk of insuring a vessel from a blockaded port is as 
great as insuring one to a blockaded port. 

Anticipating the safe arrival of the Susan at the Castle, and fearing 
no obstruction to the landing of her cargo and taking in a return cargo 
there, the claimant in these cases, on the Gth of December, 1824, ef- 
fected insurance on her anticipated return cargo, by the Louisiana State 
Insurance Company, " at and from the Castle of San Juan d'Ulloa to 
New Orleans, with liberty to touch at Laguna." And on the 17th of 
August, 1824, the Louisiana Insurance Company insured the claimant 
on the cargo of the schooner " Sterling," " at and from the Castle of 
San Juan d'Ulloa to New Orleans." (See the accompanying policies, 
numbered 10.) These two policies are found among the papers of the 
claimant in the two cases under consideration ; and it is fair to presume 
that many similar ones were issued by these and other companies to 
other merchants. 

Lest it should be presumed that these were extraordinary risks on 
account of the supposed blockade, I will repel that inference. 

Document No. 7, among the proofs in the case of the Scott, shows 



that the ordinary rates of insurance at New Orleans, on vessels and car- 
goes to Mexican ports, in the years 1822, 1823, 1824, and 1825, were 
from two to five per cent. It appears by the policy on the Susan's an- 
ticipated return cargo from the Castle, that the charged rate of insu- 
rance was two per cent., or one and a half per cent only, if Laguna be 
not used ; and that on the Sterling's cargo, one and a half. Thus it 
is proved that these insurances were not for extraordinary risks, but the 
very lowest rate charged on a voyage to or from any Mexican port. If 
it was notorious at New Orleans, as the Board assume, that the Castle 
was in a state of blockade, would these companies have ventured upon 
these risks 1 Would they, as one of them did, insure at the lowest or- 
dinary rate, and the other below the lowest ordinary rate, on a voyage 
which could not have been made without forcing a blockade ? Such 
folly cannot be reasonably imputed to them ; and is only imputable to 
them upon the unwarranted assumption that they knew the Castle was 
in a state of blockade. Their acts in the two cases referred to — and 
doubtless there are many similar ones — prove, as I think, conclusively, 
that neither company knew or even suspected that the Castle was block- 
aded. Upon this proof, I am quite confident the Board will at once 
abandon the presumption so prominently put forth in their opinion, that 
it was notorious at New Orleans, and other places in the United States, 
that the Castle of San Juan d'Ulloa was blockaded when the Susan and 
the Scott sailed for Mexico. 

If the Castle was blockaded about that time — a fact assumed, but not 
proved, and indeed improbable by the unobstructed entrance of the 
Scott, and still more so by these acts of the insurance companies — the 
blockade must have had its beginning after the last visit of the Spanish 
fleet ; of that blockade no notice was given to the Susan and the Scott, 
and there was no notoriety of it, on which a presumption of notice could 
be fairly founded. There is therefore no ground for charging them with 
the offence of violating a blockade. 

The new testimony has confirmed my original views of the merits of 
these claims ; and as it removes the foundation on which some of the 
main positions of the Board rested, I entertain the hope that it will 
conduct them to a different conclusion from that to which they have 
arrived. 

My entire confidence in the fairness and justness of these claims, 
after a full and respectful consideration of all which has been urged 
against them, is my only apology for this long communication. 

All which is respectfully submitted. 

JAMES H. CAUSTEN. 

Washington, March 27, 1851. 

[S^mitted with the above to the Board, five original policies of in- 
BuraiSe, and sundry consular letters, — J. H. C] 



SCHOONER constitution: 

CASSAIGNEAU, Master; JAMES W. ZACHARIE, Assignee 
or FRANCOIS CHETI, and re-affirmed by DOMINIQUE 
PESTALOZZA, Adm. of FRANCOIS CHETI, Claimant. 



STATEMENT OF THE CASE. 

This vessel, with a laAvful cargo of provisions, sailed from New Or- 
leans for Vera Cruz, on the 25th of June, 1824, and while on the voy- 
age, to Avit : on the 7th day of July following, Avas captured at sea by 
the Mexican national schooner of war " Iquala," and sent as a prize 
into the port of Alvarado, on the alleged ground of " a suspicious ap- 
pearance " — the officers and crew being removed to the captor. 

She arrived at Alvarado on the 10th of July, 1824, and on the same 
day a military court, Avithout a monition or notice of any kind, and in 
the absence of the captain or any one to defend him, ex parte and in 
conclave, proceeded to a mock trial, and forthwith decided the vessel 
and cargo to be " good prize." 

This drum-head court martial, assembled at the dAvelling house of the 
Commandant of the Department, AA'ho presided, viz : 
The Captain de Fragata, Don Jose Maria Fosta. 
The First Lieutenant, Don Roque Martinez. 
The First Lieutenant, Don Francisco de Paula Lopez. 
The principal Avestern Accountant, Don Manuel Fernandez de Castro. 
The Second Lieutenant, Don Juan Nunez. 
The Orderly Officer and Secretary, Don Francisco Garcia. 
It is noted in the Expediente (see page 15 of the translation,) " The 
Auditor not concurring therein, there being none in the Department, 
nor any laAvyer in the vicinity of this toAvn." It is further noted in the 
Expediente, (page 17 of the translation,) that Don Francisco Garcia, 
the orderly officer and seceretarj' as aboved named and described, was 
the gunner of the capturing vessel, and that he was very sick on the 
9th of July, (the day preceding said assemblage,) and it is presumed 
did not attend that meeting, though he is named as one of the members 
present. Be that as it may, howeA'er, this military court, decided the 
case forthwith, and in the folloAving manner. Their decision runs thus : 
" There having been examined by the members of the Junta, the 
proceedings and accompanying documents, [Avhich are not desclibed,] 
upon the detention of the N. American schooner named the Constitu- 
tion, by the sloop of war Iquala, in the Avaters of Vera Cruz'; after de- 
liberate examination, they inferred that by the direction of the vessel, 
and her cargo of provisions, she could not be coming to any of our 
ports, since the hogs, chickens, charcoal, and onions, are articles ab- 
solutely unsaleable therein, as they are abundant, and only so in the 
fortress of Ulloa, which is in a state of effective and rigorous blockade, 



69 

declared by the Supreme Government in the first article of its decree 
of the 8th of October of last year, [1823 ;] in view of which they unan- 
imously agree to the following articles : 

" 1st. That all the cargo of the said schooner Constitution is declared 

good prize, since these provisions were intended for the Castle of Ulloa. 

" 2d. The said schooner Constitution is also declared good prize, for 

sailing without a license, [register,] in conformity with the prescript of 

the 27th article of the cruising ordinance. 

"3d. That this Expediente be sent to the Auditor, that he may be 
* pleased to give his opinion." 

On the 9th of August, 1824, the owner, Francois Cheti, abandoned 
the vessel and cargo to the Mexican Government, under protest. 

On the 11th, 12th, and 13th of August, the cargo was sold by order 
of the principal Commandant ; and on the 30th of September, 1824, 
the vessel was sold by consent of parties, and at the instance of the 
owner, to prevent her destruction by the worms. 

The sale of the vessel and cargo being completed, the " Junta" or 
military court again assembled on the 23d of December, 1824, at the 
dwelling of the Commandant-in-Chief of the Department — the meet- 
ing being held at night, viz : 

The Captain of the Navy, Don Jose Maria Fosta. 
The Captain of the Navy, Don Pedro Baranda. 
First Lieutenant, Don Roque Martinez. 
The principal Contada, Don Rafael Gomez. 
The ordinary Engineer of the Department, Don Jose Amorga. 
The Orderly Officer and First Lieutenant, Don Francisco Garcia. 
Doctor, Don Carlos Hernandez Barratia. 
The Secretary ad interim, Don Jose Cayetano Allegro. 
And decided as follows, forthwith — ex parte and in conclave : 
" The Junta unanimously by vote sentenced the schooner Constitu- 
tion and all her cargo to be good prize, for the same reasons brought 
forward in the declaration of the said Junta of the 10th of July last, 
which is confirmed in all its parts ; and in consequence let notice 
thereof be given to the parties, and let the distribution be made ac- 
cording to the ordinance, first deducting the duties of the public Treas- 
ury and the costs of the suit." 

The Consul of the United States, acting in his official capacity, on 
the 3d of January, 1825, took an appeal* from said decision, to the 
Supreme Tribunal of War and Marine in the city of Mexico ; before 
which tribunal our Consul complained of the irregular and unlawful 
proceedidgs of the Junta, or military court, at Alvarado, and main- 
tained that, by the articles 12 to 17 of the cruising ordinance of June 



* So called, but manifestly a mere protest; since, by the laws of Mexico, an ap- 
peal could not be taken up from that " Junta." An appeal could no otherwise be 
taken up than from an intervening tribunal and on a contradictory suit — which 
the Mexican officials, for their own purpose, (evidently to prevent an examination 
of the merits of the claim and of their own conduct,) chose wholly to omit. And 
as the time had long elapsed within which such contradictory suit could be institu- 
ted, so it was utterly impossible for an appeal thereafter to be taken or prosecuted, 
or any further proceedings had. An abandonment and protest alone remained to 
the claimant and hia Goveromcnt. 



ro 

20, 1801, prizes shall be determined by summary, sentence pronounced 
within twenty-four hours — that a contradictory suit shall be determin- 
ed within fifteen days — and that from this second suit only an appeal 
may be taken to the Supreme Tribunal of War — that these two propo- 
sitions are indispensable — and that the assistance of an Auditor (who is 
rigorously a counsellor,) is indispensable in both of them ; and he there- 
fore prayed that the case may be sent back, in order that the irregular 
proceedings may be so far corrected by a contradictory suit or otherwise. 

And the Consul refused to plead to the merits of the appeal until the 
proceedings below were corrected ; the court sustained this position of 
the Consul, and thereupon sent the case back for correction ; all the 
proceedings being declared irregular. 

But the law having prescribed that a contradictory suit shall be de- 
termined within fifteen days after the arrival of the prize in port, and 
more than eighteen months had already elapsed, so that it was utterly 
impossible that a contradictory suit could be instituted ; and, besides, 
the vessel and cargo had been sold, and the money ordered to be dis- 
tributed, and was then in the hands of the Mexican ofiicials, from whose 
grasp no human eflbrt could extricate it ; while to pursue it further, 
would only involve the owner in increased expenditure, and he was al- 
ready exhausted. For these reasons, no further proceedings were had 
by him ; he had already abandoned the property under protest, and could 
do nothing more. 

This was a capture at sea ; and before the vessel had come within the 
jurisdiction of Mexico, civil or maritime, she was captured by a nation- 
al armed vessel belonging to Mexico, called the " Iquala," sent as a 
prize to Alvarado, and there immediately condemned as a good prize by 
an assemblage of persons assuming to be a " Junta," the vessel and 
cargo sold, and the proceeds distributed. The facts in the case show 
that the whole proceedings, and the assigned causes for the condemna- 
tion, were a flagrant violation and outrage upon neutral rights. 

The first ground taken in support of the claim is, that the condemna- 
tion was not pronounced by a court of competent jurisdiction, nor in- 
deed by any court. Those who assumed to act as a court were an as- 
semblage of officials, mostly military officers, some of whom were of 
inferior grade. They were attended by no Assessor, who is always re- 
garded as a necessary officer of a court according to the laws of Mexico, 
and whose proper function is to direct the court in regard to the law. 
There was not such an officer nor a lawyer in the Department. 

This proceeding took place in that stage of the revolution in Mexico 
when all order was subverted, and the utmost confusion prevailed. The 
Spanish authority had been swept away, but that of the revolutionists 
had not been established. Something like a regular organization of a 
civil government was instituted shortly thereafter. Within six months 
after this extraordinary proceeding, efforts were made to organize a reg- 
ular Government. 

The first Congress met on the 1st of January, 1825. In the pre- 
ceding December, General Victoria was elected President. In his in- 
augural, he states : 

" The federal judiciary not existing, and the Government being pre- 
*■ eluded from the intervention which it formerly had in that of the 



71 

* ancient Provinces, its action, in this respect, has been almost null, 
' and will be so until the Supreme Court be instituted by a law desig- 

* nating the number and local relations of the district and circuit judges, 

* and prescribing rules for territorial tribunals and the federal district." 
(See Niles' Register, vol. 28, p. 126.) 

This undoubtedly has reference to the state of things as they existed 
a few months previous, when the proceedings were had against the 
schooner Constitution and her cargo. It cannot be that persons hold- 
ing the ojfficial positions represented as appertaining to those who acted 
in the cc«idemnation of that vessel could have been a regularly consti- 
tuted court. They were unquestionably a voluntary association- — a 
self-constituted tribunal — which banded together for the purpose of 
plunder ; and the forms of judicial proceedings were only resorted to in 
order to disguise the outrage. Without laboring this point, the under- 
signed thinks he has just grounds for urging that the Constitution and 
her cargo were not condemned by a court of competent jurisdiction. 
However valid may be the cause for condemnation, unless it be pro- 
nounced by such a court, it cannot be interposed in resistance to the 
claim of the original OAvner of the property. This doctrine is so well 
known and recognised, that it is not deemed necessary to refer to de- 
cisions of courts to sustain it. 

But if the persons who pronounced this condemnation had been the 
most regularly-constituted tribunal that ever existed, and if their pro- 
ceedings had been conducted in due form of law, the reclamation in this 
case would not be thereby impaired. Most of the claims which the 
citizens of this country have had against other nations were for the 
decisions of regularly-constituted tribunals in derogation of neutral 
right, but authorized by municipal laws. The courts of France act- 
ed upon the Imperial decrees ; their authority as courts were derived 
from those decrees, and the regularity of their proceedings could not 
be impeached ; but their decisions were in derogation of neutral rights, 
and therefore indemnity for the wrongs resulting from these proceedings 
was rightfully demanded and justly allowed. So also in regard to the 
British Orders in Council of an earlier date : they authorized the ad- 
miralty courts of England to pronounce sentence of condemnation 
against the rights of neutrals. Many of the claims for which indemnity 
has been allowed against Mexico were asserted and sustained in oppo- 
sition to the decisions of her tribunals. 

The claimant is not answered by saying that a Mexican court has 
pronounced that his property was rightfully seized. It must further 
appear that there was just, legal cause for the seizure of the property — 
legal not according to Mexican law, but legal in respect to neutral or 
belligerent rights — legal in respect to international law. 

A nation, through her tribunals, as well as by any other of her offi- 
•cials, may do injustice to the citizens of other countries ; and if so, she 
must answer to the injured party. It is not believed that these posi- 
tions will be questioned ; and if the undersigned shall show to the 
Board, as he does not doubt he can, that in this case there was no just 
or legal cause, no respectable pretext for condemning the schooner Con- 
stitution and her cargo, the claimant will undoubtedly have a favorable 
award, whatever may be their opiaion of the competence of the Alva- 
rado court to act in the matt^. 



72 

The confiscation of the vessel and the cargo was pat on different 
grounds, and it will therefore be necessary to consider them separately. 

First, as to the cargo. Its principal article in value was wine. In 
the captain's deposition it is (probably by mistake) called Spanish Avine; 
but by the Mexican officials, and in the records of the proceedings through- 
out, it is called, what it truly was, French wine. No pretence was 
set up by the captors or the court, that this part of the cargo, or any 
other, were prohibited articles. It was not questioned, nor could it be, 
that every parcel of the cargo was such as the then existing laws of 
Mexico permitted a neutral trader to introduce into any of her ports. 
The sole grounds of condemnation, as stated in the expediente, are : 
" After deliberate examination, they [the court, if it is entitled to that 
designation] inferred that, by the direction of the vessel and her cargo 
' of provisions, she could not be coming to any of our portsj since the 

* hogs, chickens, charcoal, and onions, are articles absolutely unsale- 
' able therein, as they are abundant, and only so in the fortress of Ul- 
' loa, which is in a state of effective and rigorous blockade, declared by 
' the Supreme Government in the 1st article of its decree of the 8th 
' October, of last year ; in view of which, they unanimously agree to the 

* following articles : 

" 1st. That all the cargo of the said schooner Constitution is de- 
' clared good prize, since these provisions are intended for the Castle of 
' Ulloa. 

" 2d. That said schooner Constitution is also declared good prize for 
' sailing without a license, in conformity with the prescript of the 27th 
' article of the cruising ordinance." 

A slight examination of this irregular sentence of condemnation will 
show its true character. The interference of these eonderoners,- (whom 
the undersigned will, for the sake of brevity, call a court, though he 
does not believe they are entitled to so honorable an appellation,) that 
the cargo was designed for the fortress of Ulloa, is deduced from two 
assumptions or facts. The first is, the direction of the vessel and car- 
go. The vessel was out at sea. This fact is proved by the captors, 
for they do not pretend she was near shore ; they give the latitude and 
longitude of the place of capture, viz : " latitude 19° 19', and longitude 
89° 34' ; meridian west of Cadiz." All the testimony shows the ves- 
sel was out at sea when captured. The American Consul, William 
Taylor, (Document 9,) states she was ten to fifteen leagues from shore. 
Her port of destination was Vera Cruz, for that port she had cleared 
at New Orleans, and directly to that port she was steering. She was 
pursuing her true destined direction, and surely from that fact could 
no inference be properly drawn that she designed an illicit trade with 
the Castle of Ulloa. Her conduct was perfectly consistent with her 
destined intention on leaving the port of New Oi'leans. 

The officers and crew were all examined without any opportunity of 
conference or concert ; and, from their concurring testimony, it will be 
perceived that not the slightest occasion is furnished for an inference 
that her destination was different from that declared in her clearance. 
They all say she was bound to Vera Cruz, and nothing appears to con- 
tradict or conflict with what they verify under oath. No comment can 
add to the force of the testimony on this pokt. This attenipt to im« 



n 

J)licate tlie Vessel by her destination is the merest pretext that plunder- 
ers ever resorted to. 

Is the other ground of inference, that the object of the voyage was 
to trade Avith the Castle, more plausible 1 A small part of the cargo — 
in regard to the value, a very inconsiderable part — consisted of hogs, 
chickens, charcoal, and onions ; and it is averred by the court that such 
articles were abundant in Mexican ports, and absolutely unsaleable 
therein* This is said, or rather assumed, by the court ; but there is 
not a particle of proof to establish the fact. The very proof introduced 
in behalf of the captors, or the peculators, contradicts it. 

They lay before the court the depositions of the supercargo, captain, 
and crew ; on that testimony alone the decree was pronounced. Ac- 
cording to the laws of Mexico, the decree should have been pronounced 
under advice of an auditor, (or lawyer ;) but as none could be found at 
Alvarado, or in the Department, they acted without the presence or 
advice of such an indispensable official, and sought to cure the defect 
by submitting their proceedings, several weeks after they were con- 
cluded, to one whom thej^ afterAvards found. He, perceiving, as he well 
might, that the condemnation was not justified by the proof, instructs 
the court that it is proper to take the '' confession " of Cheti, the super- 
cargo, or, in other words, to subject him to a further examination and 
scrutiny ; in the hope (it is presumed) that they might be able to extract 
from him something more plausible for sustaining their decree. With 
this direction they complied. They critically examined him, not onl}'- 
as to all the circumstances of this voyage, but in regard to his previous 
tradings. Cheti's " confession," as it is called, is found on the 20th, 21st, 
and 22d pages of the record. He confirms all he had said in his deposi- 
tion, in which he had deposed that he had no Spanish property on 
board, and that he was in good faith pursuing his voyage to Vera Cruz, 
and had no intention of trading with the Castle. The questions put to 
him, when examined before the court, were very searching. One of them, 
and his ansAver, are as folloAvs : 

" It being asked of him how, under the supposition of being ignorant 
' of the continuance of the non-communication of the Castle Avith the 
' town, he ventured to bring a cargo to sell at Vera Cruz, Avhen the 

* greater part of the articles of which it is composed were most abun- 
' dant in the city, and had been shipped from thence to different ports ; 
' and how, without being sure of the state of it, he did not go to a port like 
' this to ascertain the truth, and take information of prices and circum- 
' stances, which proves that his voyage was not directed to the place 
' which he has indicated, but to the Castle, Avhere he might with great 
' profit have sold the chickens, hogs, charcoal, and other necessary arti- 

* cles in that fortress, which are plenty in the city ; in consequence, he 
' was enjoined to tell the truth. He said that his voyage was decidedly 

* for Vera Cruz, in consequence of the news which he has already stated, 

* and that the articles mentioned he, being in Campeachy, has seen 
' shipped for the aid of Vera Cruz, which was short of provisions, and 
' on account of their Ioav price in New Orleans, and he answers. Other 
' questions, charges, and recriminations, were made him, in order to dis- 
' cover the facts which were sought for. He answered to all, that he 

* does not know anything more than what he has set forth, whish he 



T4 

* affirmed and ratified ; and, it being read to him, he signed it, with the 
' commisioner, and me the notai-y ad interim of the tribunal, which I 
' certify." 

Every part of this confession, and of the depositions of the captain 
and crew, goes in a direct manner to destroy all grounds of inference or 
even suspicion that the voyage of the schooner Constitution had in 
view an illicit or any trade with the Castle. It goes further — it 
shows that the main pretext on which the court place their inference 
that there was an intention to trade with the Castle — the unsaleable- 
ness of the provisions of the cargo in Vera Cruz — was unfounded. He 
declares that, when in Campeachy, he saw there shipped for Vera Cruz, 
as being scarce and commanding a high price at the latter place, the 
very articles — hogs, chickens, charcoal, and onions ; which the court 
say, but do not attempt to prove, were there absolutely unsaleable. 

Who ever heard or imagined that it was allowable ground to con- 
demn the cargo of a neutral vessel, trading with one of the belliger- 
ents, that the owner was ignorant of or misjudged the state of the 
market to which he had sent his property ; and that the belligerent to 
which the property was sent had a right to confiscate it upon the sole 
ground that the other belligerent wanted such articles more than the 
one to which they were sent 1 Such a ground of condemnation, if sub- 
mitted to by neutrals, Avould destroy all their commerce with countries 
in a state of war. 

The Castle of San Juan de Ulloa was held some three or four years by 
the Spanish forces, after they were driven out of the other parts of Mex- 
ico ; and during most of that period there was open and permitted inter- 
course between it and the city of Vera Cruz. It drew its supplies from 
the city. Vessels trading with Vera Cruz first went to the Castle and 
paid duties— eight per cent on the value of their cargoes— and after* 
Wards were received and unladed in the city of Vera Cruz. 

If this intercourse was temporarily interrupted, as it appears to have 
been about the time the Constitution made her voyage, foreign mer- 
chants might reasonably expect it would soon be re-established ; and 
regulating their trade upon this expectation, they are not to lose their 
property if they happen to have miscalculated. 

Whether the market at Vera Cruz was good or bad for the articles 
which composed the cargo of the Constitution, it is enough to say, that 
by the law of nations in relation to neutral commerce, the trade was 
fairly open to the citizens of the United States ; and the good faith of 
the voyage cannot be impeached on the ground assumed by the Alva- 
rado court. 

Having shoAvn that the pretences on which the court proceeded to 
condemn the cargo were groundless, enough has been done to establish 
a claim of indemnity for the loss ; yet the undersigned deems it to be 
his duty to present, in a brief manner, other grounds of objection to 
the sentence of condemnation in this case. 

The vessel was out at sea, and not within the maritime or civil juris- 
diction of Mexico. This fact is clearly established. The captors do 
not pretend that she was near the shore. The American Consul, who 
interposed his official aid in that character, on seeing the shameful out- 
rage and fraud committed on this property of one of our citizens, felt 



u 

hltnself constrained^ as a matter of official ditty, to interfere fol* Its 
protection. He appears to have thoroughly examined this case^ and 
says, she was "ten to fifteen leagues from land," "out of sight" of 
land, when captured. 

No Mexican municipal laws could affect the case ; they could not 
operate upon the vessel and cargo until she should arrive within the 
maritime jurisdiction of the Republic, which extends to only one league 
from shore. It is deemed sufficient to barely suggest this point, were 
there no. other ground of objection in the case ; this alone Avould be con- 
fidently relied on to sustain the claim* 

The Castle was a possession of Spain. " On what ground was a direct 
trade with it denied to the schooner Constitution, or any other neutral 
vessel, assuming what is alleged by the court, but contrary to what is 
proved, that the object of the voyage of that vessel was to trade with 
the Castle 1 Asa neutral nation, our citizens had as good a right to 
trade with the Spanish possessions as with those of Mexico. The only 
ground on which the trade of our citizens with the Castle could be in- 
terfered with, would be that the Castle was actually invested by a Mex- 
ican force — a maHtime force. It is true the court say the Castle " Was 
' in a state of effective and rigorous blockade, declared by the Supreme 
' Government in the first article of its decree of the 8th of October, of 
' the last year" 1823. 

Thus it appears that the blockade resulted from the decree of the 
Supreme Government ; the Castle was blockaded because the Govern- 
ment declared it blockaded. This was nothing more nor less than " a 
paper blockade J^^ and the doctrine upon that subject is Avell settled* 
Neutrals have a perfect right to disregard such constructive blockade. 
It is not shown or pretended that there was an actual investment of the 
Castle by force. In one place it is said it was under the guns of the 
forts on land, but that is not such an actual investment as neutrals are 
obliged to respect ; they do not incur the penalty of running a blockade, 
when there is not an actual investing force before it. 

There is not the slightest evidence or intimation that the Constitution 
attempted to violate an actual blockade, or that there was in fact any 
blockading force about or in the vicinity of the Castle. The blocka- 
ding force was only the decree of the Supreme Government. If, there- 
fore, the Constitution had actually cleared for the Castle, and avowed 
her intention to trade with it, she would not have been liable to con- 
demnation, because the Castle was not invested by a blockading force. 
The captors cannot sustain their assumed right to seize neutral property 
on the way to a belligerent port, without they 'show an actual and effect- 
ive blockade, and that the neutral had knowledge thereof; and there 
is no proof of either. In this case there is a most signal failure to lay 
any foundation for condemning the Constitution and her cargo. The 
captors prove no trading or an attempt or a design to trade with an en- 
emy's port ; and they prove no actual blockade. 

There is still further objection. No notice of a blockade had been 
promulgated. It will be observed that neither the captain nor the su- 
percargo were asked if they had any knowledge of the blockade of the 
Castle, but onlj^if they knew whether war existed or hostilities had 
ceased between Spain and Mexico. Their reply shows that they knew 



ft 

of tlie existence of hostilities, but not of the blockade. The silpercar- 
go is asked if he knew that there had been firing upon each other by 
the citj^ and Castle. His answer is, that he had heard of it, but that 
just before he sailed he had learned, by a vessel from Tabasco, that 
there had been an arrangement made between the city and the Castle. 
The captors carefully avoid asking them about their knowledge of an 
actual blockade. 

It appears, by the deposition of Juan J. Presas, not only that there was 
actual intercourse between the Castle g-nd the town during most of the 
time the former was held by the Spaniards, but that the decree of the 
Supreme Government, declaring the Castle in a state of blockade, was 
not promulgated any other way than by placards put up in the city of 
Vera Cruz» This was not a sufficient notice to neutrals ; and if there 
had been an actual blockade, and they had attempted to trade with the 
Castle, they would not thereby have exposed their property to condem- 
nation. The most that could have been done, without proof of actual 
notice of the blockade, would be to turn the neutral vessels away from 
the blockaded place. After notice, or being turned aAvay, if a neutral 
vessel should attempt to run or violate the blockade, she and her cargo 
might incur the penalty of condemnation. A knowledge of existing 
hostilities is not either actual or constructive knowledge of a blockade. 
On this ground, therefore, if evei'ything that was pretended against the 
schooner Constitution had been made out, there could have been no 
rightful condemnation. She could have been interrupted in a trade 
with the Castle, and warned off, but was not liable to be confiscated. 

The law upon this subject is very clear, and need not be referred to, 
as it is held to be well known. A brief examination of the decree of 
blockade, of October 8, 1823, will of itself, it is believed, fully dispose 
of this branch of the case : 

The first article of the decree merely states, " The fortress of San 
Juan de Ulloa is declared to be in a state of blockade ;" but it pre- 
scribes no penalty on neutrals for trading with it. The decree further 
states, the only force deputed to make the blockade effective is the bat- 
teries and artillery at the city of Mexico ; but neither these batteries^ 
nor any other force ^ naval or military^ is authorized to make captures 
at sea. 

And the only article in the whole decree, which makes prize of any- 
thing, is the third, which is wholly confined to vessels of all nations 
coming into Mexican ports with cargoes of " the products and manu- 
factures of Spain.^^ " They shall be considered good prize.^^ And 
there is no other part of the decree that in the most remote manner 
refers to American vessels or their cargoes. 

It is very certain, therefore, that this decree does not reach this case; 
and hence, the capture, and condemnation under it, is a gross and pal- 
pable robbery. 

The pretext for condemning the vessel is equally untenable as that 
set up for condemning the cargo. 

She had not, as the captors truly alleged^ a certain paper called " a 
license," required by the twenty-seventh article of the cruising ordi- 
jjance.' 

:/ The first position taken in opposition to. this grouna of condemnation 
is j that a belligerent has no right to prescribe what papers a neutral ves* 



77 

sel shall be furnished with. If such a right on the part of a belliger- 
ent was once conceded, it would lead to the total annihilation of neutral 
commerce. For a belligerent might in that case require what could not 
be obtained. There are, however, certain papers that a vessel engaged 
in a fair trade is presumed always to have, and if found without them, 
that circumstance is a ground of suspicion, and may have some weight 
in establishing the charge of being engaged in an illicit trade. The 
schooner Constitution was not an American-built vessel, and she had 
not, nor could she have, a register certifying that she was an American- 
built vessel. She was the property of an American citizen — property 
which he had a perfect right to hold and use in his foreign commerce. 
He loses nothing by trading with such a vessel, except the advantages 
given by our navigation laws to American-built vessels. The Constitu- 
tion had been for some time engaged in trade with Mexico ; she had 
then recently performed two voyages to Tampico without such register, 
and no exception had been taken to the sufficiency of her papers. The 
United States Consul, who is the proper depositary of the papers of our 
vessels while they remain in a foreign port, is the proper judge of their 
validity ; it is one of the principal duties of his office ; and in this case 
he not only confirmed the sufficiency of her papers to entitle her to the 
protection of his Government, but he stepped forward voluntarily, as 
a matter of official duty, in her defence, and in the name of the United 
States asserted her American character, and then protested against the 
abuse of it by the captor, and by the tribunal that joined in the depre- 
dation upon it. 

She had (what was tantamount to a register) a bill of sale or certifi- 
cate of ownership, which showed she was a foreign bottom, which served 
to protect her as American property on the ocean and in foreign coun- 
tries, and entitled her to entry and clearance in all the ports of the 
United States. 

This document sufficiently and satisfactorily accounted for the absence 
of a register. 

Is it to be tolerated, that a foreign nation shall prescribe what kind 
of papers a vessel owned by an American citizen shall have, and for 
the want of which shall assume the right to condemn it "as good 
prize? " 

What shows conclusively bad faith in the court is, that it suppressed 
this certificate of ownership, and did not put it in the expediente. But 
the American Consul, who interfered after the owner had abandoned 
both the vessel and cargo, and given notice to the Mexican authorities 
that he would hold their Government responsible for his losses, discov- 
ered the fraudulent suppression of the certificate of ownership, and de- 
manded that it should be added to the record. (See the Consul's pe- 
tition, on page 27 of the Record.) 

The Consul's petition, which will be found on pages 23 to 29, is a 
very able document ; it enters fully into the merits of the case, exposes 
and sweeps away all the unfounded and ridiculous pretences and as- 
sumptions on which the decree of condemnation is founded, and shows 
the rank injustice of the Avhole transaction. The impurity of the court, 
which he had witnessed and exposed, might well justify the abandon- 
ment of all hope of recovering the property, since it had been already 
sold, and the distribution ordered among the Mexican of^cials, in which 



78 

this impure judge was also to participate. Under such circumstances, 
the whole was very properly abandoned, under protest. The undersigned 
respectfully asks the particular attention of the Board to this able doc- 
ument. The Consul was on the spot ; knew and saw the actual state 
of things there ; and directly contradicts the assumptions of the court, 
by reference to known and notorious facts. 

The certificate of ownership having been drawn reluctantly from the 
Commandant, who kept it back obviously to give color to the pretext 
for condemning the vessel, all the essential and requisite papers were 
furnished, and nothing was left to excuse the iniquitous character of the 
whole proceedings. 

Francois Cheti, an American citizen resident at New Orleans, was 
the unquestionable owner of the Constitution and her cargo at the time 
of her capture. His right to indemnity is clearly established. He 
made a regular transfer of the claim to James W. Zacharie, in his life- 
time, who now presents it for allowance by the Board. The document 
of transfer was mislaid, but the actual transfer is well authenticated ; 
and Cheti's administrator, who was cognizant of the fact at the time, 
now proves its validity and fairness. 

The damages claimed are as follows — being the same as originally 
filed in the Department of State, which original is filed in the proofs 
in this case. No. 20, and endorsed, " filed in the Department of State, 
April 9, 1845," deeming it most proper to now present the claim to the 
Board as it was then presented to the Government — viz : 

[Copy of the claim as originally filed in the Department of State, on the 9th April, 

1845.1 

Schooner Constitution, formerly '•^Prince Oscar, ^^ Ambrose Cassaig- 
neau, master; James W. Zacharie, assignee of Francois Cheti, 
claimant. 

STATEMENT OF LOSS. 

Vessel — 
For the value of the vessel (p. No. 6) - - - - $6,000.00 
For insurance on outward voyage, to cover premium at four 

per cent., and two and a half per cent, commission - 256.25 



Cargo — 
For the invoice at prime cost (No. 6 A) - $4,879.82 

For advance thereon, one hundred and fifty per 

cent. (No. 6) - - - - 7,319.T3 

For breaking up the voyage and loss of profit 

on return cargo (No. 6) - - - 5,000.00 

Freight — 
For return freight and primage (No. 6) - $1,575.00 

For insurance on outward freight on $1,")75, 
to cover premium at four per cent., and two 
and a half per cent, commission - - 77.93 



6,256.25 



17,199.55 



1,652.93 



n 

Charges — 
For expenses in defending the property (No. 6) $1,500.00 
For cost of proof and translations - - 350.00 



Interest — 

On loss on vessel - - - - $6,256.25 

" cargo - - _ - 17,199.55 

" freight - . - - 1,652.93 

" expenses - - - - 1,500.00 



1,850.00 



From July 7, 1824, to April 7, 1845, at six 
per cent, on - - - - 26,608.73—33,127.79 



Total $60,086.52 



All which is respectfully submitted to the Board. 

JAMES H, CAUSTEN. 
Washington, January 27, 1851. 



[Note. The Board submitted to the counsel a paper, setting forth certain points 
of law and matters of fact in this case, as to which they were in doubt. This 
paper is not found on the files of the Board; but an argument on said points (ac- 
companied by additional proof) was thereupon filed, and is now on the tiles of the 
Board, whereof the following is a copy.] 

THE SCHOONER CONSTITUTION AND CARGO. 

The Board having favored the undersigned with a statement of the 
difficulties which have arisen in their minds in regard to this claim, he 
is enabled, as he flatters himself, to remove them, principally by ad- 
ditional evidence herewith submitted. 

Some distrust is indicated by the ^oard as to the validity of the 
claim, from the fact " that it was not brought to the notice of the Gov^ 
ernment until April, 1845," 

That the claimant felt aggrieved by the ' proceedings of Mexico in 
this case, and procured the interference of his Government long before 
the period above mentioned, appears by the following copy of a letter 
from our Minister in Mexico, Mr. Poinsett, to the Mexican Minister 
of Foreign Relations : 

Mr. Poinsett to Mr. Viesca. 

Mexico, JYovember 12, 1829. 
The undersigned. Envoy Extraordinary and Minister Plenipotentiary 
of the United States of America, requests that the most excellent Sec- 
retary of State and Relations will cause him to be furnished with a 
copy of the legal proceedings held at Pueblo, for the trial and condem- 
nation of the American schooner Constitution, as well as those of the 
first court, from the decision of which the appeal was made to the tri.- 
bunal at Pueblo.— Ex. Docs., 2d Sess. 25th Cong., vol. 12, p. 304-5. 

This single fact is sufficient to remove the slightest distrust as to the 



80 

fairness of this claim, on the assumed ground of long acquiescence in 
the alleged wrong. When it appeared that no redress could be obtained 
from Mexico, and that the policies of insurance did not cover the loss, 
an appeal was made to our Government. This appeal was made more 
than twenty-one years ago, and urged through our Minister, whose de- 
mand was disregarded, .and no answer given to it. The neglect of the 
claimant to present this case to the mixed Board under the Convention 
of 1839 seems also to have made an unfavorable impression upon the 
Board. It appears by the memorials of the claimant in several other 
cases, (the Rebecca, Scott, Susan, &c.,) that he did not regard the 
Convention of 1839, or the decisions of the mixed Commission under it, 
as promising any available relief ; and for that reason did not submit 
either of his several claims to that Board. Additional evidence is now 
offered, to show that that opinion was freely expressed to other persons 
at New Orleans at that time, and most probably to the assignor in this 
case, with whom the claimant was intimately acquainted ; he did then 
believe, and not without plausible reasons, that such awards would not 
be worth the trouble and expense of getting them. 

If in this respect he was in error, it would be hard indeed to allow 
such a misapprehension to affect injuriously his claim before the Board. 
Had nothing been done by our Government after the conclusion of the 
proceedings of the Board under the Convention of 1839, the views taken 
by Mr. Zacharie as to the value of the aAvards Avould have been entirely 
correct ; his main error was, in not anticipating subsequent events. He 
was wise and sagacious in regard to what would be the state of things, 
if left where it was reasonable to expect they would be left. 

It cannot be that he will be prejudiced in his claim in this case, be- 
cause he did not foresee an extraordinary course of future comity, not 
only unprovided for and unexpected, but resulting altogether from a 
subsequent and unanticipated negotiation, solicited by the Government 
of Mexico, and for her own convenience and benefit. 

The undersigned believes tlv? documents now produced will relieve 
this case from all embarrassment on this point. 

The Board seem to entertain some doubts as to the person who owned 
the vessel at the time of capture. If they will look at the proofs, 
these doubts will be entirely removed. Francis Cheti, who is clearly 
proved to have been at that time an American citizen, was unquestion- 
ably the owner of the vessel and cargo, though the latter was shipped 
and invoiced in the name of his agent, Jacques Zino, (who Avas also a 
citizen of the United States,) but " for the account of the said Francois 
Cheti." (See invoice, and deposition No. 2.) 

Among the additional documents herewith filed is the deposition of 
Henry R. Denis, (No. 1,) who, it will be observed, is an aged and re- 
spectable lawyer, having been in practice of the law for forty-five years 
at New Orleans, and was engaged in the suits upon the policies in this 
case- This testimony will, it is believed, eifectually remove all difficul- 
ties that may exist in the mind of the Board in regard to the ownership 
of the vessel and cargo at the time of the capture. And the deposition 
of Gallien Preval (No. 4, also herewith filed) establishes the citizen- 
ship of said Jacques Zino. And it is not understood that any doubt 
is raised as to the fact that the present claimantj James W. Zacharie, 



81 

has fairly succeeded to the rights of said Francois Cheti, and is a citizen 
of the United States. 

The foregoing remarks, it is confidently believed, will dispose in a 
satisfactory manner of all objections to the claim for the Constitution 
and her cargo, except such as relate to the policies of insurance and the 
judicial proceedings thereon. 

It is now shown by the reports of the case upon the policies, (No. 7, 
herewith filed,) that nothing was recovered thereon. The record of the 
prize court in Mexico was produced in the suit on the policies in the 
Louisiana court, and it appearing by that record that the court decided 
that the vessel committed an act which was an infringement of the war- 
ranty, the insured failed, on the ground that the question of a breach 
of the warranty was res judicata. It could not go beyond the sentence 
of the Mexican tribunal. 

Upon a principle of law which will not be here controverted, the 
court in Louisiana was required to regard the sentence of the Mexican 
court as conclusive, and not examinable by it, however unjust and in- 
iquitous that sentence might have been. That the Mexican tribunal 
had pronounced a definitive decree was the only matter the court in 
Louisiana could investigate ; and it was not within its competence to 
review the decision. The copy of the case from the Louisiana Reports 
(2 vol., 533) is herewith filed as No. 7, and it shows that the court 
considered itself thus restricted. The principle on which the decision 
was thus made is stated in the marginal note ; " The decree of a foreign 
' court of admiralty is res judicata^ in regard to the matters decided 
' therein." 

But the Board are aware that they are not embarrassed by any such 
restriction. Theirs is a larger jurisdiction, and the res judicata does 
not circumscribe it. It is their province and their duty to go beyond 
and behind the decisions of foreign tribunals, to review their proceed- 
ings, to rejudge their judgments, and set them at nought if they find 
these tribunals have not respected neutral rights. Were not this so, 
neutrals could never have any redress for their wrongs ; for the courts 
of the ofiending party would furnish a shield of protection. It is not 
necessary to enforce or enlarge on this point ; for the authority of the 
Board to examine into the proceedings of a foreign tribunal, and disre- 
gard its decisions if they find cause for doing so, is clearly and accu- 
rately stated by them in the sketch of their opinion prepared in this 
very case ; and no doubt is entertained that they will exercise that 
authority in regard to the Alvarado court, without being in the least 
embarrassed by the result of the suits in the Louisiana court on the 
policies. 

Nothing will be here added in regard to the constitution of the Mex- 
ican tribunal, or the irregularity of its proceedings, to what was sub- 
mitted in the former argument ; and not much in regard to the iniqui- 
tous judgment it pronounced. The records of judicial proceedings do 
not furnish a decree so entirely unsustainable, in regard to proof or 
pretext, as that condemning the Constitution and her cargo. The 
schooner cleared from New Orleans 'with a legitimate cargo for Vera 
Cruz, a voyage in all respects free and legal. She was captured by 
the Mexican armed sloop of war Iquala, while at sea, out of sight of 
6 



82 

land, twelve or fifteen leagues from Vera Cruz, on the ground of sus- 
picion of an intention to trade with the Castle of San Juan de Ulloa. 
And what, it may be asked, was the ground of that suspicion 'i Did 
she clear out for the Castle 1 No. She cleared for the port of Vera 
Cruz. Were there any papers found on board, indicating an intention to 
trade with the Castle 1 No ; none at all. The captain, supercargo, and 
all the crew, were at once separated, critically and captiously exam- 
ined, and some of them re-examined ; each and all declared that the 
voyage was to Vera Cruz in good faith, and positively denied all inten- 
tion to trade with the Castle. All proof failing to make out the slightest 
ground for the charge of an intended illicit trade, the captors resorted 
to pretexts of a most flimsy character. They pretended to suspect that 
she intended to trade with the Castle, from the course she was pursu- 
ing on the high sea. Was she deviating from her course to Vera 
Cruz, the place to which she was cleared? Not at all. No such de- 
viation was pretended or proved ; for the course to Vera Cruz and the 
Castle is the same, and it was absurd to set up such a pretence. If 
this pretence could prevail, every vessel bound to Vera Cruz, and seized 
on the high sea, might have been confiscated with impunity by the Mex- 
ican authorities. The only other pretext was, that the nature of her 
cargo indicated an intention to trade with the Castle. By far the lar- 
gest part of her cargo was unfitted for any market the Castle could af- 
ford; but she had some chickens, hogs, and onions, which they alleged 
the Castle wanted, but with which the city of Vera Cruz was most 
abundantly supplied. The allegations, both as to the wants of the 
Castle and the abundant supply in the city, are not proved even by the 
testimony of the captors. They draw out from the supercargo, in what 
they call "his confessions," the express proof that he had heard, while 
at Tabasco, that there was a great scarcity in Vera Cruz of chickens, 
hogs, and onions, and in consequence of this information he had taken 
them on board as a part of his cargo of the Constitution. As this point 
was fully discussed in the former argument, the undersigned would re- 
spectfully request the Board to look again at pages 8, 9, 10, and 11, of 
that document. 

In regard to this point, which is in fact the main one in the case, the 
undersigned boldly ventures the assertion that there was not elicited 
one single fact that justified the slightest suspicion as to the fairness 
of the voyage of the Constitution ; that there is not a particle of proof 
to uphold the sentence of the court ; but on the contrary, in searching 
to find something to justify the condemnation, the captors efiectually 
disprove all their pretences, which they had set up for implicating the 
vessel and her cargo. 

If a reasonable suspicion in such a case would justify condemnation, 
the sentence in this case could not be sustained. But the rule of evi- 
dence applicable to the case gives a better security to neutral commerce 
than the suspicions which rapacity and cupidity can conjure up. The 
proof required to involve a vessel and cargo in the penalty of confisca- 
tion for violating or attempting to^ violate a blockade must be clear and 
unequivocal. Not only the actual blockade, (which, as Chancellor Kent 
says, in his Commentaries, page 144, is a law harsh and severe in its 
operation against neutrals,) must be established by clear and unequivo- 



83 

cal testimony, but the other acts, implicating neutral vessels, should be 
proved with like certainty. 

Guided, as the undersigned does not doubt the Board will be, by this 
rule of evidence, he confidently anticipates a result in this case favor- 
able to the rights of the claimants. 

The expediente before the Board contains all the proofs which were 
before the Mexican tribunal, and recorded by it, and its examination 
will show that the decree (which the Louisiana court was by a rule of 
law required to regard as conclusive, but the Board is not) was made 
not only without evidence'^ but in fact against evidence^ and in flagrant 
violation of neutral rights. 

[JAMES H. CAUSTEN.] 



[DECISION OF THE BOARD.]— ZACHARIE, ASSIGNEE 0^' 

CHETI. 737. 

This claim is for the value of a vessel called the Constitution, and 
her cargOj taken near the Castle of San Juan de Ulloa, in 1824, by the 
Mexican vessel of war Iquala, and sent into Alvarado. She was con- 
demned, with her cargo, by a prize court, and on appeal the sentence 
was affirmed. Cheti was supercargo on the voyage ; and in his exam- 
ination and subsequent confession on oath touching the question before 
the courtj he made oath that he owned the vessel, but the cargo be- 
longed to another. Policies of insurance had been taken out at New 
Orleans upon the vessel and cargo ; and in a suit against the under- 
writers, the question of interest in the plaintiff, onQ Jacques Zino, was 
directly raised. The court decided that there was evidence of interest 
in Zino in the cargo, but not in the vessel. (See Zino vs. Louisiana 
Insurance Company, 2d Lou. Rep.) 

Francois Cheti afterwards, to wit, on the 6th of March, 1846^ made 
affidavit before the associate judge of the city of New Orleans, that he 
was sole owner of both vessel and cargo, and that he had assigned his 
interest in the same to James W. Zacharie, the present claimant. The 
latter makes oath that he lost the assignment^ and he brings forward 
the acknowledgment of the executor of Cheti, assenting to the assign- 
ment. 

The Board are not disposed to permit a party to be injured by con- 
tradictory statements of a witness made at different times, if such party 
had an interest that did not depend mainly for its proof upon the oath 
of such witness. In this case, however, the proof of interest not only 
depends on the testimony of a witness forsworn, but such interest is 
derived directly from the witness by assignment. No one could have 
known so well as Cheti who was the owner of the cargo ; and at a time 
most material, pending a question, of interest by a judicial investigation, 
he swears that another is owner of the cargo. It does not appear that 
he found out his error until after the lapse of twenty years. 

The Board decides, from the evidence in the case, that the claim for 
the value of the cargo is not valid. 

The prize court condemned the vessel because she was sailing without 
a paf>er showing her character, and t^us^ they say, she was violating 



84 

the cruising ordinance of Mexico. How far a State may regulate com- 
merce within her own waters, it is unnecessary to inquire in this case, 
since the vessel was captured on the high seas ; and the right of capture 
in such cases is, in the absence of treaty stipulations, dependent on 
the law of nations. 

It is not directly settled by the public law what shall be the form of 
certificate to protect the vessels of neutral nations sailing on the high 
seas in time of war. A bill of sale, containing a description of the ves- 
sel, with proof of citizenship in the owner, may be sufficient ; yet most, 
if not all the nations of Europe, require that vessels shall be provided 
with registers, passports, sea letters, or some certificate emanating from 
the State, or by its authority, proving the character of the vessel. The 
Constitution, a foreign-built vessel, (her former name being changed by 
the purchaser,) was purchased by Cheti, a citizen of the United States, 
and by the laws of the United States was not entitled to any certificate 
from the public, establishing her ownership or character. The bill of 
sale under which the owner claimed to navigate his vessel did not con- 
tain a description of the vessel, except in the name ; and though attested, 
as was also the citizenship of the owner, by a notarj^ public, would seem 
to justify the detention of the vessel by the captors. We think the case 
before the prize court admitted further proof for the claimant. In 
cases analagous, where the question of prize, if determined on the ves- 
sel's papers, would have justified her condemnation, the courts have 
permitted the claimants to make further proofs — as in the case of a 
vessel sailing from necessity without a register, or its accidental loss ; 
and also where the vessel was visited, and some of her papers necessary 
for her defence we^-e taken away. But in such cases, the courts have 
ordered the vessels to be restored, on payment of the captors' expenses. 
We think, under the circumstances, that the vessel should not have 
been condemned upon the ground set forth in the judgment of the prize 
court at Alvarado, and the claimant was therefore entitled to restitution 
of the property. 

The Board decides that the claim for the valtte of the vessel at Al- 
varado is a valid claim against Mexico, and the same is accordingly 
allowed ; the amount to be awarded subject to the further order of the 
Board. 

GEORGE EVANS, ) 

CALEB B. SMITH, V Commissioners. 

ROBERT T. PAINE, ) 

March 26, 1851. 



NOTE. 

In order to a proper understanding of the final decision of the Board 
(as stated at foot) on the four several cases hereinbefore set forth, it 
is proper to remark, that some time before the close of the Commission, 
which would be the 16th of April, 1851, the Board announced that the 
numerous cases for rehearing (solicited by motion, and granted) would 
be taken up for decision on the 1st of April, and thence to the close, on 
the 16th of April, be appropriated expressly to them. By their journal, 
however, it appears that on the 15th of April, their last day of action, 
they disposed of the mass of business stated at foot hereof; and, al- 
though their record states that they " then proceeded to consider " each 
of the cases separately set down for rehearing, and " after mature con- 
sideration ordered that the said motion be denied," yet it is manifest 
that the examination and decision of such a mass of business was utter- 
ly impracticable within the single day given to it ; and it is no less man- 
ifest, therefore, that even the reading of such arguments and additional 
proof was wholly dispensed with and disregarded. 

Extracts from, the Journal of the Board. 

"Tuesday, April 15, 1851. 

The Board met pursuant to adjournment ; all the members present. 

The Board then proceeded to ascertain and determine the amounts 
to be awarded to the several claimants respectively, whose claims have 
been heretofore allowed — 

Ordered, That interest at the rate of five per cent, per annum be 
computed on all claims which have been allowed, for the property lost, 
or contracts unfulfilled, unless a different rate of interest was stipulated 
in such contracts, from the origin of the claim to the 16th of April, 
1851, when the Commission will expire; and thereupon the Board 
awarded to John Wilkins, &c." — and so also in 196 cases particu- 
larly designated therein. 

" The Board then proceeded to the consideration of the motion filed 
on the 14th instant, for are-examination of the claim of E. H. Saulnier, 
heretofore rejected ; and thereupon came to, an opinion — 

Ordered, That the said motion be denied. 

The Board then proceeded to consider the motion submitted on the 
4th of March last, for a re-examination of the claim of Edmund J. For- 
estal and Cucullu's, administrators, for the seizure of the schooner Fe- 
lix ; and, after mature consideration of the same, 

Ordered, That the said motion be denied." 

Then follows ten like decisions. And then follows : 

*' The Board then proceeded to consider the motion heretofore filed 
for a re-examination of the claim of James W. Zacharie, for the loss of 
the schooner Rebecca and cargo ; and, after mature consideration of 
the same, 



Ordered, That the said motion be denied. 

Ordered, That the said motion be denied. 

daJof M^ri^^r.^'f "^'^ to consider the motion filed on the 27th 
day of March last, for a ^re-examination of the claims of James W 
Zacharie, for the seizure of the schooner Scott and the schooner Susan* 

thTsater''''''^ ' ^'"^' "''^'"^''' mature consideration of 

Ordered, That the said motion be denied. 

The Board then proceeded > '-on anew claim, viz: the memorial and 
proofs of Ehsha H. Saulnier, " filed this day." The memorial was " re- 
ceived, evidence examined, and claim for $14,950 allowed." 

Then follows three additional cases in which the motion for recon- 
sideration "is denied ;" and it is remarkable that each and every case 
of this description shared the same fate-all were summarily "denied." 

1 hen follows the decisions of the Board on " colonization contracts," 
wnereot seven were rejected. 

Then follows the decisions of the Board on three " land companv " 
claims, which were allowed. 

The Board then proceeded to record a resolution in favor of their 
messenger, Wm. Ryan. 

The Board then proceeded to consider two additional claims for Re- 
examination, which resulted as the former ones— . 
'^^^ Ordered, That the said motion be denied." 

journ?d%il';?d'ar' '"^''' '' ''' '"^""^ '^'"^ ''^ *^^^ ^^- 

CHARLES W. DAVIS, Secretary.'' 

, J^ ^""^ ^^^^diately thereafter the Commissioners and their clei-k 
lett the city of Washington. 

After the appointment of the Select Committee of the Senate to ex- 
amme the proceedings of said Board, one of the members of the Board, 
Mr. Smith, sent two several messages, by a mutual friend, to the 
counsel of Mr. Zacharie, and afterwards repeated to the counsel in 
person, that he was always of opinion that Mr. Zacharie's four cases 
[those hereinbefore described] ought to have been allowed by the 
^oard. He had, nevertheless, signed the adverse decisions of the 
Board m each and all of the said four cases, as will be seen on pages 
y, J», d9, and 84. 



m 



UNITED STATES OF AMERICA. 

DEPARTMENT OF STATE. 

To all to whom these presents shall come, greeting : 

I CERTIFY, That with the exception of the Introduction, the Notes, 
and the closing remarks after the adjournment, of the Board, the papers 
hereunto annexed are a true copy, transcribed from and carefully col- 
lated with the original papers on file in this Department. 

In testimony whereof, I, Secretary of State of the 
United States, have hereunto subscribed my name, and caused 
the seal of the Department of State to be affixed. 

Done at the City of Washington, this twenty-fifth day of 
January, A. D. 1853, and of the Independence of the United 
States of America the seventy-seventh. 

EDWARD EVERETT. 




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